JUDGMENT 1. - This is a State appeal against the acquittal of the accused-respondent of the charge under S. 16/54 of the Rajasthan Excise Act, 1950 (hereinafter referred to as the Act). 2. Before I take up the appeal, I cannot help observing that from the grounds of appeal, it appears that it was filed on the ground that the view of the learned magistrate which is based on a judgment of a learned single Judge of this Court in S B. Criminal Revision No 237 of 1976 decided on 28-3 1979 that the Excise Inspector was not an Excise Officer and the court could not take cognizance of an offence on his report in view of Section 67 of the Act, was not correct. The leave to appeal appears to have been granted on the ground that the view was not correct in view of the Division Bench decision of this Court in D.B. Criminal Appeal No. 152 of 1980, State v. Laxman decided on 12-8-80. But on going through the file, it appears to me that the ground taken in the application to leave to appeal and the memo of appeal is not the ground involved in this appeal. It appears that the accused-respondent was not acquitted on the ground that the magistrate could not take cognizance of an offence under the Act on the report of the Excise Inspector but the accused-petitioners have been acquitted on merit. Be that as it may, I will take up the appeal on the grounds which appear to be involved in it. 3. In brief, the facts of the case are thus : Bhimsingh PW 2 was the S.H.O., Police-Station, Sangaria District Srigangingar on September 6, 1978. On that-duty, be along with other police personnel,namely, Najrilal PW 1 Foot Constable No. 429, Surendersingh, Vishnu, Bhagirath and Premsingh left police station at 1.00 a.m. for patrol duties. When the police party was on the bridge of MZD canal, it was noticed that at about 2.15. p.m., jeep No. RRK 2611 came from the side of Morzand Sikhan. It was stopped and Bhimsingh PW 4 flashed his torch and saw that accused respondent Uttam Chand was driving the vehicle and Retram accused respondent was sitting by side. There was also a third person in the jeep who had covered his face. p.m., jeep No. RRK 2611 came from the side of Morzand Sikhan. It was stopped and Bhimsingh PW 4 flashed his torch and saw that accused respondent Uttam Chand was driving the vehicle and Retram accused respondent was sitting by side. There was also a third person in the jeep who had covered his face. Seeing the police party, the accused-respondents and the third man made their escape in the darkness. When the jeep was seen, it was noticed that there were 13 half gunny bags and each of them contained 25 bottles of liquor. Four samples were taken out of four gunny bags and they were duly sealed on the spot. The samples were marked as A2, B2, C2 and D2. They were kept in the Malkhana and were sent through Mamraj constable No. 261 to the Public Analyst, Jaipur, where the samples were delivered on September 20, 1978. They were analysed and it was found that they were liquor, each having 50 46 UP ethal alcohol. During investigation of the case, it was gathered that the jeep was owned by accused-respondent Uttamchand. The accused were tried by the learned Magistrate under Sec. 16/54 of the Act and the learned Magistrate acquitted them. 4. It appears that the learned magistrate had acquitted the accused-respondents on two grounds: (1) that the third man who was sitting covering his face in the jeep was not made an accused and no investigation was directed towards that and; therefore, a suspicion is created that the person who was sitting in the jeep was in actual possession of the bottles of liquor and (2), the occurrence took place at 2.15 in the night and the accused persons ran away. I am of the opinion that both the grounds on which the acquittal of the accused respondents is based, are perverse. The occurrence took place at 2.15 a.m. There is evidence of Bhim Singh PW 2 and Hajari PW 1 that Bhimsingh was having a torch with him and he flashed it and saw that the accused respondent Uttamchand was driving the jeep and accused Hetram was sitting by his side. Hajari PW 1, a constable, I has stated that he knew both the accused-respondents prior to the occurrence and identified them, and saw that the accused respondent Uttamchand was driving the vehicle and Hetram was sitting by his side. Hajari PW 1, a constable, I has stated that he knew both the accused-respondents prior to the occurrence and identified them, and saw that the accused respondent Uttamchand was driving the vehicle and Hetram was sitting by his side. Nothing favourable to the accused was brought out in the cross-examination of Hajari PW I. PW 4 Bhimsingh, the S.H.O., has also given a similar statement. There is not even a suggestion that there was any reason for Bhimsingh to falsely implicate the accused-respondents, if they were not in the jeep. The learned magistrate has not even discussed as to why the statement of Bhimsingh and Hajarilal that they identified the accused respondents in torch light should not be believed. As already stated earlier that observing that the third person has not been made an accused, the learned magistrate has disbelieved the prosecution case. The third man had covered his face and merely because during the investigation his identity could not be disclosed and he could not be made an accused, it cannot be said that the case against the accused respondents is not made out. The learned Magistrate has wrongly observed that the third man who was sitting in the jeep covering his face was sitting not by the side of the driver, accused respondent Uttamchand, but was sitting in the back of the jeep. None of the witnesses has stated so. It has been stated that the third man was also sitting by the side of the accused respondents. The jeep RRK 2611 was owned by accused Uttamchand and it was he who produced the registration of the jeep in police station on 15-9-1978. He had also a driving licence. The fact that both the accused-respondents ran away on seeing the police party leaving behind 13 gunny bags, each containing 25 bottles of liquor in the jeep goes to show that both the accused persons were in possession of the liquor for which they had no licence. 5. The samples were taken on 6-9-1978. It has come in the statement of Bhawanisingh PW 2, the S.H.O. that after the samples were sealed, they were kept in the Malkhana and were handed over to Mamraj PW 3, for being taken to the Public Analyst. 5. The samples were taken on 6-9-1978. It has come in the statement of Bhawanisingh PW 2, the S.H.O. that after the samples were sealed, they were kept in the Malkhana and were handed over to Mamraj PW 3, for being taken to the Public Analyst. Thus, there is sufficient evidence that from the time the samples were sealed, till they reached the office of the Public Analyst, Jaipur, the seals were intact. Mamraj PW 3 has clearly stated that on 19-9-1978, he had taken the sealed samples of the case to the laboratory at Jaipur and had delivered them in the sealed condition. He has proved Ex P. 19, the receipt of the Public Analyst. There is also Rapat Rojnamcha Ex P. 10A of the Police Station, Sangaria, from which it appears that on 19-9-1973 at 6.30 p m, the sealed samples were handed over to Manraj PW 3 for being taken to the Public Analyst. That apart, a perusal of the report Ex. P. 8 of the Public Analyst will show that the samples were found properly sealed at the mouth with impression of the seal corresponding to the seal impression forwarded separately and the seal were found intact. 6. Therefore, it can be said that the accused respondents were found transporting liquor and in possession of it. 7. I, therefore, allow this appeal, set aside the judgment of the learned Magistrate and the order of acquittal and convict each of the accused respondents Uttamchand and Hetram under S. 16/54 (a) of the Rajasthan Excise Act. Each of the accused-respondents Uttamchand and Hetram are sentenced to undergo three months rigorous imprisonment for the said offence. The learned trial court is directed to get the accused-respondents arrested so that they may undergo the sentence awarded or remaining part thereof. Jeep No. RRK 2611 is liable to be confiscated under Section 69 of the Rajasthan Excise Act, 1950, as the accused-respondent Uttamchand himself was driving the vehicle and there is no material on record that he had no reason to believe that the offence was being committed or was likely to be committed. It is, therefore, ordered that the vehicle No. RRK 261 shall stand confiscated to the State. The trial court shall order the Supard-dar to produce the jeep.Appeal Allowed. *******