JUDGMENT P.N. Harkauli, J. 1. SURAJ Singh applicant was convicted under Section 60 (a) (f) of the Excise Act and was sentenced to six months R. I. and a fine of Rs. 1,000/-. In default of payment of fine he was ordered to undergo 8 months further R. J. Against this order of the learned Magistrate, Surjan Singh preferred an appeal which was dismissed by the learned Sessions Judge, Kanpur. Thereupon the present application for revision was filed. 2. THE prosecution case was that on 28-5-1971, at about 5 P. M., Excise Inspector, Sri R. C. Srivastava searched the house of the applicant and on his pointing out 5 pounds of rectified spirit in bottles, two bottles and three half bottles of illicit whisky, three bottles of illicit rum, one half bottle of illicit rum, 1150 Capsules, 13,000 labels, 15 lis. essence and colour meant for English Wines, the Capsule machine, etc. were recovered from him. The applicant pleaded not guilty and alleged that he had been falsely implicated on account of enmity. He further stated that once before he had been challaned under the Excise Act but he had been acquitted. 3. THE prosecution examined two witnesses namely the Excise Inspector, Sri R. C. Srivastave and one Kailash Nath to prove the aforesaid recoveries. THEir evidence, as already stated, was believed by both the courts below. 4. LEARNED Counsel for the applicant contended chiefly that there was no evidence worth the name to prove that the aforesaid articles had been recovered from the possession of the applicant. This argument appears to have force. Sri R. C. Srivastava (P. W. 1] no doubt stated in his examination-in-chief that he had searched that portion of the house which was in possession of the applicant Similarly Kailash Nath (P. W. 2) the other witness had stated in examination-in-chief that the house of the applicant was searched. But in cross-examination Sri R. C. Srivastava stated that upon enquiry he had come to know that the house belonged to the applicant and that he had come to know on the day of the occurrence that the back portion of the house (from which the recoveries are alleged to have been made) was in the possession of Surjan Singh. 5. 5. THESE statements of the Excise Inspector clearly show that he personally had no knowledge about the portion in possession of the applicant, and that his statement in his examination-in-chief to the effect that the southern portion in question was in the possession of the applicant was entirely based upon hearsay and information received from others on the day of occurrence. Obviously hearsay is no evidence. The persons who had personal knowledge about the matter, should have been produced to prove that the: portion of the house from which the; articles were recovered was in possession of the applicant. No such evidence, however, was produced. 6. SIMILARLY the cross-examination of Kailash Nath shows that he too had no knowledge at all as to who was in possession of which portion of the house. Indeed his cross-examination shows that he was not even in position to know anything about it. He stated that his house is at a distance of 2-2) furlongs from the house from which the recovery is said to have been made,, that he did not know as to who was in possession of all the rooms in the houses and that he did not even know whether there were any rooms to the south and west of the courtyard or not. This clearly shows that Kailash Nath was; neither in position to know nor he knew as to who was in possession of which portion of the house. If that is so,, it is obvious that he could not be in a position to say as to whether the recovery was made from the portion of the house in possession of the applicant or not. The cross-examination of both Sri R. C. Srivastava and Kailash Nath shows that a number of other persona lived in this house. As such, unless the prosecution proved by satisfactory evidence that the articles in question were recovered from the portion in the exclusive possession of the applicant it could not be held that the aforesaid articles were recovered from the possession of the applicant. Perhaps it was because of this difficulty that both Sri R. C. Srivastava and Kailash Nath stated that these articles were recovered on the pointing out of the applicant. This allegation, however, is somewhat difficult to accept. Perhaps it was because of this difficulty that both Sri R. C. Srivastava and Kailash Nath stated that these articles were recovered on the pointing out of the applicant. This allegation, however, is somewhat difficult to accept. In the first place, it will be seen that the learned Sessions Judge has observed in his judgment as follows with regard to Kailash Nath :-. "I would have certainly not Belied on the testimony of Kailash Nath but for the fact that, in the instant case, the recovery memo is, signed by the applicant himself." 7. THIS shows that the Appellate court was not at all satisfied with the evidence of Kailash Nath. And the Excise Inspector could not be considered to be an entirety dis interested witness. It is not easy to place implicit reliance on the evidence of such witnesses on the said point. Secondly it is obvious that so much stuff must have occupied and lot of space. It could not have been kept concealed in a corner,and must :have been visible to any person who entered the room. Indeed neither Sri Srivastava nor, Kailash Nath say, that these things were kept concealed. In such circumstances there could hardly be any occasion for the applicant to point out these things. 'So, I find it difficult to believe this allegation. 8. MOREOVER even assuming that the recovery was, made on pointing out of the applicant that would not help the prosecution. That can only show that the applicant knew that the set articles were there in the house. In the absence of any satisfactory evidence to show that that portion was in the exclusive possession of the applicant, his mere knowledge can give little help to the prosecution. For these reasons, I am of the opinion that even if it be believed that the aforesaid things were recovered from the house, that cannot fasten liability on the applicant. 9. BESIDES i find that in this case there was no compliance with Section 103 of the Criminal Procedure Code, 1898. Kailash Nath has stated that at the time of the recovery there were 40-50 or 60 persons present there but no witness of the locality was taken and produced in the case. 9. BESIDES i find that in this case there was no compliance with Section 103 of the Criminal Procedure Code, 1898. Kailash Nath has stated that at the time of the recovery there were 40-50 or 60 persons present there but no witness of the locality was taken and produced in the case. Instead of Kailash Nath who admittedly lives about half a mile away and happened to reach that place as he was going for a walk was taken as a recovery witness. This noncompliance under Section 103 again is a serious flaw in the prosecution case; which seems to have escaped the notice; of the courts below. 10. THE learned Sessions Judge: appears to have been considerably influenced by the consideration that a substantial quantity of articles have been recovered. No doubt the quantity is: substantial but it was certainly not: beyond the resources of the Excise Inspector. So this consideration could hardly be conclusive. In any case as mentioned earlier in the absence of any admissible evidence to show that the place from which these articles were recovered was in the exclusive possession of the applicant, it cannot be said that the charge was legally proved against the applicant. For these reasons, I am of the opinion that the conviction of the applicant was not based on legally admissible evidence and has, therefore, to be set aside. 11. APPLICATION for revision is allowed and the conviction and the sentences of the applicant are set aside. He is on bail. He need not surrender. His bail bonds are discharged. The fine, if paid, shall be refunded. Revision allowed.