JUDGMENT - S.J. DESHPANDE, J.:---This criminal revision is filed by the original accused who were convicted and sentenced by the Judicial Magistrate, First Class, Chiplun by his order and judgment dated October 10, 1980 in Criminal Case No. 562 of 1980 for the commission of an offence under section 66(1)(b) of the Bombay Prohibition Act. Each of the accused persons was sentenced to suffer 15 days, S.I. and to pay a fine of Rs. 100/- in default to suffer S.I. for 1 week. The conviction by the learned Magistrate was upheld by the Appellate Additional Sessions Judge in Criminal Appeal No. 93 of 1980 by his judgment dated April 24, 1981. The petitioner original accused Nos. 1 and 2 have filed this revision against the conviction passed by the learned Judicial Magistrate, Chiplun, which was confirmed by the learned Additional Sessions Judge, Ratnagiri. 2. A few facts may be stated at follows :- On February 13, 1980 the Police Officers of Chiplun were busy in conducting the raids in regard to prohibition offences. They saw one motor-cycle. It was alleged, that petitioner Nos. 1 and 2 were sitting on the motor-cycle. Petitioner No. 1 was driving the motor-cycle and petitioner No. 2 was sitting behind. The police halted the motor-cycle when they noticed that petitioner No. 2 was getting down and keeping the can on the road and thereafter the motor-cycle went away. Petitioner No. 2, it is alleged, was chased and caught by one constable but he tried to run away and petitioner No. 1 had made good escape. 3. The contents of the can were examined in the presence of Panchas. Sample bottles were taken and sent to the Chemical Analyser. The accused were charge-sheeted in the Court of the learned Judicial Magistrate, First Class at Chiplun on the allegations that both the accused were in possession of the contraband liquor and, therefore, they were liable to answer the charge. 4. The defence of the accused-petitioner No. 1 was that some one else was at the alleged scene of offence and he was not the person who was riding the motor-cycle. There was some error in identification in so far as petitioner No. 1 is concerned. Petitioner No. 2 denied the charge that he was in possession of the contraband liquor and also denied the guilt. 5. Prosecution examined 3 witnesses. There was some error in identification in so far as petitioner No. 1 is concerned. Petitioner No. 2 denied the charge that he was in possession of the contraband liquor and also denied the guilt. 5. Prosecution examined 3 witnesses. One is Shripat Gurav who was the Head Constable at the material time. The second witness was the Panch Vithal Jujaji for the seizure of the contraband liquor. The 3rd witness is Bhaskar Kadam the Constable, who had carried the sample bottles to the Chemical Analyser. On the basis of the evidence of the above witnesses the courts below have convicted the accused as stated above. 6. Mr. G.R. Rege the learned Advocate for the petitioners has contended before me that there is no evidence to show that accused No 1. i.e. petitioner No. 1 was properly identified as the same person who was going alongwith petitioner No. 2 on the motor-cycle. As far as petitioner No. 2 is concerned, he submitted that the alleged samples which were sent to the Chemical Analyser containing the contraband liquor are not proved to be the same contraband liquor which was found on February 13, 1980 under Exh. 12. Mr.Rege further made a grievance that the seizure of this can was made on February 13, 1980 while the sample was sent to the Chemical Analyser on 28-2-1980. He also complained that the alleged sample was sent by the Sub-Inspector, Alore Police Station, very late. Relying on Exh. 15 Mr. Rege contended that at the top of the letter outward number bears No. 640 dated 28-2-1980 in C.R. No. 4 of 1980. In this report itself there are erasers at 3 places. In the place of 'Jadhav' the name of 'Kadam' is over-written. In the place of Serial No. 968''707' is over-written and in the place of date in the black ink the date is mentioned as 20/21, while in the blue ink the figure 8' is over-written on the figure 0'(Zero). Relying on this defence and the contents of this report, Mr.Rege, contended that both the findings recorded by the courts below are findings of fact of joint possession. That finding appears to be completely erroneous and perverse. Relying on this defence and the contents of this report, Mr.Rege, contended that both the findings recorded by the courts below are findings of fact of joint possession. That finding appears to be completely erroneous and perverse. 7.The learned Public Prosecutor Shri Damble pointed out that there is no infirmity in the report as well as in the letter because all these defects, which are shown to me and now pointed out by the learned Advocate, should have been asked to the prosecution witness who has been examined in this case and that prosecution witness was examined as P.W. No. 3. In the absence of any such questions to be put to that witness, it would not be permissible at the appellate stage to disregard that part of evidence of the prosecution witness and re-appreciate the same. He further supported the conviction, although he mentions that as far as accused No. 1 is concerned, it is not possible to point out any evidence as to the fact of his alleged joint possession alongwith accused No. 2 in respect of the custody of the can. The Court below had recorded the finding that both the accused were found to be in joint possession of the can. 8. In my opinion, the judgment of the learned Appellate Judge suffers from two infirmities. The first infirmity is that the learned Appellate Judge has not recorded the findings relating to each of the accused separately. It was necessary to find out the part played by accused No. 1 in respect of possession or unloading of the can and its custody. The evidence suggests that both the accused tried to run away. The second petitioner who is accused No. 2 was actually caught by the Constable. It is quite possible that accused No. 1 might have apprehended that he will be involved in the police case and it is quite probable that he might have rushed away. Therefore, in my opinion, as far as accused No. 1 is concerned, the case is not based on the legal evidence except on the general finding that he was travelling with accused No. 2 and one cannot infer that the possession of contraband liquor was joint. Therefore, the conviction of accused No. 1 is liable to be set aside. 9. Turning to the case of accused No. 2, Mr. Therefore, the conviction of accused No. 1 is liable to be set aside. 9. Turning to the case of accused No. 2, Mr. Rege, the learned Advocate for the petitioner pointed out that no link is established between the samples which were sent by the police to Chemical Analyser and the contents found in the can at the time of actual seizure of the can which was thrown on the road. He also relied on the fact that there was a delay in sending the samples to the Chemical Analyser. It is true that the argument of this sort mainly derives support from the factual situation. It would have been certainly better if prosecution witness No. 3 would have been given chance to explain all these defects which were pointed out by the learned Advocate. Yet the prosecution cannot rest on such evidence as is available in this case in order to convict accused No. 2 It is a fact that the report of sending samples was delayed, because it was retained in the police Station for more than 15 days and the Head Constable who was actually in charge of the samples was not examined in this case to explain the delay. Prosecution witness No. 3 Kadam who deposed and whose evidence was accepted by the courts below is only a formal witness of carrying these samples. The fact that these samples were a part and parcel of the contraband liquor which was seized on February 13, 1980 had not been proved by direct evidence of the person who has delivered the samples to a particular constable or to a particular person who could depose before the Court that he has delivered those samples and the same were received by a particular person and, therefore, they should be identified as the samples which he received from the Police Officer to be sent to the Chemical Analyser. This according to me, is a very complicated situation and, therefore, the petitioners are entitled to get benefit of doubt on that ground. The evidence of prosecution witness No. 3 is very cryptic in this matter. He has deposed as under : "Firstly Jadhav was ordered to take bottle. This according to me, is a very complicated situation and, therefore, the petitioners are entitled to get benefit of doubt on that ground. The evidence of prosecution witness No. 3 is very cryptic in this matter. He has deposed as under : "Firstly Jadhav was ordered to take bottle. But thereafter I was called to take bottle hence I carried the bottle." This according to me is sufficient to establish the fact that the Head Constable who was the incharge of Muddemal articles and who received the seized can and sample bottles from the P.W. 1. must have given some samples to the said P.W. No. 3. The identity of the bottles sent to the Chemical Analyser is itself in dispute. The case numbers which are referred to are only formal in the sense that they could be repeated from the similar record. Further deposition of this witness that some lable was there on the said bottle does not advance the case of the prosecution at all. The whole basis of suspicion is attached to the fact that the alleged sample bottles which were sent to the Chemical Analyser were not the same which were taken from the alleged seized can. It is undisputed that the prosecution has not chosen to examine the proper person to connect the link between the offence of the prohibition and the vendors. It is quite probable that many samples in different C.R. Numbers must have been lying in Police Station, so there is reasonable doubt in regard to this sample as being sent to the Chemical Analyser. The delay in sending the samples, the defects which I have shown above and the absence of evidence of receiving these sample bottles by the Officer-in-charge of Muddemal articles from the concerned Officer who first seized them, destroys the case of prosecution. In this connection, Mr.Rege the learned Advocate relied on an un-reported judgment of this Court in (Criminal Appeal No. 1404 with 1405/73 which is decided by my learned Brother Sawant. J., on November 17,1975)1, wherein a similar question arose before this Court on the similar circumstances of delay in sending the samples to the Chemical Analyser and for want of evidence for identity of the sample bottles. J., on November 17,1975)1, wherein a similar question arose before this Court on the similar circumstances of delay in sending the samples to the Chemical Analyser and for want of evidence for identity of the sample bottles. In that case there was a further serious lacuna that the alleged letter was also not sent and the Court has further observed as follows :--- "In the absence of the said letter and in the absence of the evidence of the person sending the said letter, it cannot be said that the prosecution conclusively proved that the bottles containing the samples of the contraband seized were the very bottles which were given the said number C.R. No. 1078/72 by the person despatching the said letter and the said bottles. It may very well be, in the absence of the evidence of such person, that the person despatching the said letter and the said bottles might have sent some other bottles which have no connection with the present case." This Court has also observed that : "It cannot be said with any amount of certainty that the bottles contained the samples which were collected in the present case and none else." Relying on these observations it was submitted by the learned Advocate for the petitioner that in the present case also there are similar factors and, therefore, the prosecution has failed to establish the charge against the accused. In my opinion, the contention is supported by the above authority and, therefore, I accept the same. 10. It is true that generally the evidence which is led in regard to despatch, if it is coupled with other evidence of the Officer is found to be rather direct or cogent, the defects will not be of any consequence. But in the special facts of this case for want of proof that the said sample bottles were actually delivered to the concerned Police Constable and a delay which was caused in sending the samples to Chemical Analyser, I am inclined to accept the contention made by the learned Advocate for the petitioner. 11. I think that normally this Court would not interfere in the finding of fact recorded by the courts below in its revisional jurisdiction but in the matter of criminal revision the fact that whether the evidence established guilt or not constitutes a point of law for the purpose of revision. 11. I think that normally this Court would not interfere in the finding of fact recorded by the courts below in its revisional jurisdiction but in the matter of criminal revision the fact that whether the evidence established guilt or not constitutes a point of law for the purpose of revision. In view of the above fatal defect in the evidence the charge cannot be held to be proved against the accused. 12. In the result the revision application is allowed. Rule is made absolute, and the order of conviction and sentence passed against the petitioners is set aside. Fine if paid, be refunded. Accused petitioners stand acquitted. Bail bonds stand cancelled. -----