JUDGMENT 1. - This revision petition has been preferred against the judgment passed by the learned Additional Sessions Judge No. 1, jodhpur dated january 9, 1976 by which he confirmed the finding of guilt of the accused-petitioner by the learned Chief Judicial Magistrate, Jaisalmer. The Chief Judicial Magistrate, Jaisalmer by his judgment found the accused guilty for the offences tinder sections 4 (1) (e) and (2) of the Rajasthan Prohibition Act, 1969 (hereinafter referred to as 'the Act'), and sentenced him to six months' rigorous imprisonment and a fine of Rs. 250/- on each count with a further order that in default of payment of fine the accused will undergo twenty days simple imprisonment on each count. Both the substantive sentences were ordered to run concurrently. 2. Briefly stated the facts of the case giving rise to this revision petition are that on July 4. 1973 Jawan Singh, Station House Officer, Jaisalmer with other employees of the police went to the house of petitioner Malook and took the search of the house. He recovered implements alleged to be used for manufacture of illicit liquor and the liquid article in a tin which was being manufactured at that time. He took that article in four bottles, and prepared the required memos. After completion of investigation charge-sheet under section 54 of the Excise Act was filed in the Court of Chief Judicial Magistrate, Jaisalmer. The learned Magistrate charge-sheeted the accused for the offences under sections 4 (11 (d) and (e) and S 4 (2) of the Act, and recorded the plea of the accused. The accused denied the charges and claimed to be tried. 3. The prosecution examined seven witnesses in all. The accused in his statement totally denied the allegations levelled against him and examined two witnesses in his defence. The learned Magistrate held that the article alleged to be illicit liquor cannot be considered so for want of the report of the Public Analyst, but in view of the fact that certain implements were recovered from the possession of the accused, he held the accused guilty for the offences under sections 4 (1) (e) and 4 (2) of the Act, and passed the judgment of conviction and sentenced the accused as mentioned above. 4. Bring aggrieved by the judgment the accused went in appeal, which was dismissed by the learned Additional Sessions judge. 5. 4. Bring aggrieved by the judgment the accused went in appeal, which was dismissed by the learned Additional Sessions judge. 5. Learned counsel for the petitioner has assailed the judgments of the courts below on the ground that when the article alleged to have been manufactured from the implements recovered could not be proved to be illicit liquor, there arises no question of the accused being guilty of any offence under the act. It has also been stressed by the learned counsel that the accused was initially charge sheeted for the offence under section 4 (2) of the Act and it is not evident from the record as to when sections 4 (l) (d) and (e) of the act were added in the charge. According to the learned counsel, it so appears that subsequently this charge under section 4(1) (d) and (e) was added without notice to the accused, and, therefore, the accused could not have any occasion to refute that charge, hence his case was prejudiced. 6. The learned Public Prosecutor controverting the arguments submitted that assuming for the sake of argument that section in 4(1)(d) and (e) of the Act was not there initially in the charge, it does not prejudice the case of the accused because the prosecution witnesses were disposing about the recovery of the implicating utensils etc. from the accused. It has been urged by the learned Public Prosecutor that it is only because of the technical error of not getting the alleged illicit liquor examined by the Public Analyst that the contents of the bottles were not held to be liquor but in view of the provisions of section 4(1) of the Act the burden is on the accused to controvert the prosecution case that the implements recovered from his possession were not used for manufacturing illicit liquor. The learned Public Prosecutor fairly agrees that the offence under section 4 (2) of the Act is not made out in absence of proof that the liquid article recovered from the accused was illicit liquor, but he has tried to justify the conviction of the accused for the offence under Sec 4 (1) (e) of the Act on the basis of the implements recovered from him. 7. I heard the rival contentions and gave my anxious consideration to the material on the record. 7. I heard the rival contentions and gave my anxious consideration to the material on the record. There is concurrent finding of the two courts that the contents from the tin taken in four bottles could not be proved to be illicit liquor. The prosecution case is that the what was being manufactured was that liquid which was taken in the bottles. 8. I will first deal with the argument regarding the addition of section 4(l)(d) and (e) in the charge. The learned Public Prosecutor agrees that this charge has been added with ink. It cannot be said that when it was added, but it might not be there at the time of reading the charge to the accused because in the order-sheet dated 12 6.1972 it is mentioned that the charge under section 4(2) of the Act was read over and explained to the accused and he denied the charge. If this charge under section 4 (1 (d) and (e) was not there initially then there is much force in the argument of the learned counsel for the petitioner that the case of his client was prejudiced because he did not attempt to prove that the utensils said to be recovered from his possession were used for some other purpose than that of manufacture of illicit liquor. Leaving aside this point about the case of the accused being prejudiced by this charge, the pertinent point to be noted is that the raiding party had seized something which was being manufactured at the time of raid and when the liquid so seized could not be proved to be illicit liquor, where arises the question of all the articles used for manufacturing that article being proved to be the implements for manufacture of illicit liquor. The matter would have been different, if liquor would have been recovered from the house of the accused aid the implements would also have been recovered. In that case there would have been connection between the implements and the manufactured article to fasten the guilt on the accused, but when the prosecution had failed to discharge the initial burden that some incriminating article was recovered from the possession of the accused, in my opinion, the prosecution cannot take advantage of the provisions of section 4(4) of the Act. In the case of Mst. In the case of Mst. Netkki v. The State of Rajasthan, 1978 R.C.C. 158 some utensils and wash were recovered from the possession of the accused, the article alleged to be illicit liquor said to be recovered from the accused was not held to be illicit liquor for want of any chemical examination, and, therefore, it Was held that there was no evidence as to the implements recovered from the possession of the petitioner to be the articles to be used for manufacturing illicit liquor. It was observed in that case that those articles recovered from the possession of the petitioner were the articles ordinarily used for domestic purposes. Applying that principle in the present case, especially when the thing manufactured from these implements was not proved to be illicit liquor, I am inclined to hold that the conviction of the accused for the offence under section 4 (1) (e) of the Act also does not stand justified. 9. Under the circumstances I accept the revision petition, set aside the conviction and sentence passed against the accused and acquit him of the charges framed against him. The accused-petitioner is already on bail. He reed rot surrender to it. His hail bonds stand discharged. The amount of fine, if deposited, shall be refunded.Revision accepted. *******