JUDGMENT : L. Rath, J. - A conviction u/s 47 (a), Bihar and Orissa Excise Act, 1915 sentencing the Petitioner to R. I. for one year and imposing a fine of Rs. 1000/. having been confirmed in appeal, the Petitioner has moved this Court in revision. 2. The prosecution case is that the officer-in-charge of Nilgiri P. S. on receipt of an information on, 9-11-1977 that some quantity of Liquor was being unauthorisedly transported from Nilgiri distillery, entered a Station Diary Entry and along with two other police officers proceeded towards the distillery where they reached at about 1 a. m. on 10-11-19,77 and found a car bearing No. W. B. C. 2861 loaded with 6 jars of country liquor of 30' litres capacity each with the Petitioner as the driver and the sole occupant of the car. The car and 180 litres of liquor were seized and the Petitioner was arrested, the jars brought to the P. S. and on the .next day the Excise S. I. was requested to examine the contents: who on examination opined it to be liquor. The Petitioner was released on bail and the cat was given in his zima but the jars were kept in the P. S. Malkhana with proper seals and thereafter Prosecution Report was submitted against him. 3. The defence of the Petitioner, as revealed from the accused statement, was that a false case had been foisted against him since he declined to pay subscription for Kalipuja. Further, evidence was also led through d. w. 1 to the effect that the car belongs to one Raheman who is the owner of the distillery but however the ownership of the car had not been transferred to him since,it had been purchased only a few days back. Raheman and the witness as also the Petitioner had come to the distillery to witness the Kalipuja where the vehicle was .seized since die ownership had not been transferred. The Police demanded money and acted rough and on such account a false case has been foisted. 4. Mr. Mukherjee appearing for the Petitioner has raised three contentions assailing the conviction of the Petitioner. According to him, even if the prosecution case is accepted in full, yet no offence is made out. Secondly, there is no evidence that the Petitioner was in conscious possession of the liquor and thirdly the fact of seizure is also doubtful. 4. Mr. Mukherjee appearing for the Petitioner has raised three contentions assailing the conviction of the Petitioner. According to him, even if the prosecution case is accepted in full, yet no offence is made out. Secondly, there is no evidence that the Petitioner was in conscious possession of the liquor and thirdly the fact of seizure is also doubtful. 5. So far as the first leg of the submission is concerned, it is contended by Me. Mukherjee that even if it is accepted that the Petitioner had in possession of 180 litres of country liquor yet it is not shown as to what offence he has committed. Section 47. Bihar & Orissa Excise Act itself is not an offence but only provides that if anyone indulges in the various acts enumerated in Sub-clauses (a) to (g) thereof in contravention of the provisions of the Act or of any rule, notification, order, licence, permit or pass made, issued, given or granted, as the case may be, under the Act, shall be convicted as provided for under that Section. It is as such necessary,? before any conviction under this Section can be maintained, to prove that the person proceeded against has in fact been guilty of any of such acts as are prohibited u/s 47. The Petitioner has been proceeded against for having committed an offence u/s 47 (a) which is as follows: xx xx xx Thus for pressing home a charge u/s 47 (a) the prosecution has to establish that: (a) the accused has done all or any of the acts of importing, exporting, transporting manufacturing, collecting, possessing or selling any liquor or intoxicating drug, and that (b) these acts are done in contravention of any of the provisions of the Actor of any rule, notification or order made, issued or given, or is violation of any 1icence, permit or pass granted under the Act. 6. Unless both these facts are established the charge against the accused is bound to fail. It .is not enough to show merely that a quantity of liquor was either possessed or was being exported or transported but it is also necessary to be shown that such possession, exporting or transporting is in contravention of any law which may be an express provision of the statute or may be provision of any notification or order or may be a condition of a licence, permit or pass. Nothing has been proved in the case to show as to show provision of law the Petitioner has violated and under which provision of the law possession or transporting 180 litres of country liquor is prohibited. My attention has been invited by the learned Counsel appearing for the State to Sections 8, 12 and 19 of the Bihar & Orissa Excise Act. The Sections may be extracted usefully: 5. Definition of ?retail and ?whole sale?: (1) The Board may, by notification, declare with respect either to the whole of the (State) or to any specified local area, and as regards purchasers generally of any specified class of preachers, and either generally or for any specified occasion, what quantity of any (intoxicant) shall, for the purposes of this Act, be the limit of a retail sale. (2) The sale of any (intoxicant) in any quantity in excess of the quantity declared in respect thereof under sub?Section (1) shall be deemed to be a wholesale sale. 12. Passes for import, export or transport: (1) No (intoxicant) exceeding such quantity as the (State Government) may prescribe by notification, either generally or for any specified local area, shall be imported, exported or transported, except under a pass: Provided liquor other chat in the case of duty-paid foreign than denatured spirit, such passes shall be dispensed with unless the (State Government) by notification, otherwise directs with respect to any local area. (2) The passes required by Sub-section (1) may be granted by the Collector. (2) Such passes may be either general for definite periods and particular kinds of (intoxicants) or special for specified occasions and particular consignments only. 19. Possession of intoxicant generally: ( 1) No person not being licensed to manufacture, cultivate, collect or sell any (intoxicant) shall have in his possession any quantity of any (intoxicant) in excess of such quantity as the Board has, u/s 5, declared to be the limit of a retail sale, except under a permit granted by the Collector in that behalf. (2) Sub-section (1) shall not apply to. (2) Sub-section (1) shall not apply to. (a) any foreign liquor (other than denatured spirit which is in the possession of any common carrier of warehouse man as such, or (b) any foreign liquor which has been purchased by any person for his bona fide private consumption and not for sale or for use in the manufacture of any article for sale, or (c) tari intended to be used in the manufacture of gur or molasses, (d) tari intended to be used solely for the preparation of food for domestic consumption and not: (i) as an intoxicant, or (ii) for the preparation of any intoxicating article, or (iii) for the preparation of any article for sale. (3) A licenced vendor shall not have in his possession at any place other than that authorised by his licence any quantity of any (intoxicant) in excess of such quantity as the Board has u/s 5, declared to be the limit of a retial sale, except under a permit granted by the Collector in that behalf. (4) Notwithstanding anything contained in the foregoing Sub-sections, the (State Government) may, by notification, prohibit the possession by any person or class of persons. (or, subject to such exceptions, if any, as may be specified in the notification, by all persons) either in the State of Orissa or in any specified local a rea, or any (intoxicant) either absolutely or subject to such conditions as it may prescribe: No notification has been produced by the prosecution in the case under any of the Sections either by the Board or by the Government as the case may be in which limits of retail sale u/s 5 the limits of the quantity beyond which pass would be required for import, export or transport or the limits of the quantity in excess of which a permit would be required from the Collector for possession has been fixed. Unless such basic fact is established, the provisions of Section 47 (a) would not be attracted. Nothing has been proved in this case to make either the possession or transportation of the liquor as alleged to be a contravention of the provisions of the Act, Rule or any notification made thereunder or of any licence, permit or pass and hence the objection raised by Mr. Mukherjee is well taken. 7. Nothing has been proved in this case to make either the possession or transportation of the liquor as alleged to be a contravention of the provisions of the Act, Rule or any notification made thereunder or of any licence, permit or pass and hence the objection raised by Mr. Mukherjee is well taken. 7. Besides in a prosecution u/s 47 (a) of the Bihar & Orissa Excise Act, 1915, the charge must be specific as to of which offence the accused is guilty of i, e. either or importing exporting, transporting, manufacturing collecting, possessing or selling liquor or intoxicating drug or anyone more of them. If the charge is not specific, the accused cannot be expected to meet an allegation made at random. From the evidence of P.Ws. 2 and 3, the officer-in-charge of the P. S. and the P.S. I attached to the P. S., it appears that the offence alleged against the Petitioner was of attempting to illegally transport 180 litres of country liquar. The prosecution Report of the case shows that the information on the basis of which the raid was conducted was to the effect that there was unautharised export of country liquor from Nilgiri distillery. If that is substance of the charge, then it must be said that it has not been proved. The evidence of P.Ws. 2 and 3 is specific that at the time of their raid the vehicle was about to start towards Udala which was further clarified by p.w. 2 that the vehicle was about to move and by p.w. 3 that the car was in starting condition. Such evidence evidently means that the car was not in a moving condition. Exporting some article would necessarily means the articles being an the move but the car being not in a moving condition the liquor in this case could not be said to be an the move. It is always passible far a car in the starting condition not to start moving and to stop the engine. In such event, it cannot be said that any transportation has taken place. It is of course possible that a vehicle which is carrying contraband articles has already moved and while on its way to the destination it steps an the way. Such a temporary stoppage would of course not make cessation of transportation. In such event, it cannot be said that any transportation has taken place. It is of course possible that a vehicle which is carrying contraband articles has already moved and while on its way to the destination it steps an the way. Such a temporary stoppage would of course not make cessation of transportation. But, however, the very case of p.w. 2 is that the vehicle was seized at a distance of 100 yards from the distillery and the distillery shop is surrounded by open space. The evidence of p.w. 3 shows that the car was at a distance of 100 cubits from the distillery. Hence it appears man probable that by the time the car was seized which was in a starting condition, either exportation or transportation had not started. In a decision of this Court Crl. Rev. No. . 204/70 decided an 13-9-1971 it was held, relating to a prosecution u/s 7 of the Orissa Rice (Movement Central) Order, 1964 that there must be clear evidence of export or transport and that the mere fact that while a beat was stationery at the ghat it was being loaded with rice would not prove that the bags of paddy were being admittedly transported to. West Bengal on the other side of river Subarnarekha since there was no scope for ignoring even the possibility that the boat could sail along the bank confining itself to the Orissa portion of the river. Mulkiat Singh and Anr. v. The State of Punjab, on which reliance was placed in the decision also explained the destination between the preparation and the attempt to commit as offence and held that from the seizure of the truck with paddy inside the Punjab territory, there could not be any conclusion of ?export of paddy?. A later decision Nasu Sheikh and Ors. v. The State of Bihar, is also to the same effect. 8. While it has not been proved that transporting or exporting etc. of 180 litres of country liquor is an offence, the very seizure of 180 litres has not also been proved. It is the prosecution case that six jars each containing 30 litres of liquor making a total of 180 litres of liquor were seized. However, p.w. 1. 8. While it has not been proved that transporting or exporting etc. of 180 litres of country liquor is an offence, the very seizure of 180 litres has not also been proved. It is the prosecution case that six jars each containing 30 litres of liquor making a total of 180 litres of liquor were seized. However, p.w. 1. the seizure witness on recall stated that while 4 jars were of 30 litres capacity, 2 were of 20 litres capacity and hence even if the jars were full at the time of seizure, yet it will make a total of 160 litres and not 180 litres which suggests that there never was any seizure of 180 litres of liquor. 9. In this view of the matter it cannot be said that the State has been able to establish the offence against the Petitioner. The judgment of the trial Court as also of the appellate Court reveal a non-application of mind to the essential and relevant facts arising in the case and hence the judgments cannot be sustained. It is not necessary, in view of the conclusions reached to discuss the other aspects of the case raised by Mr. Mukherjee as to whether the articles seized were in the conscious possession of the Petitioner or whether the articles were actually seize. 10. In the result, the revision is allowed and the conviction and sentence passed by the Courts below against the Petitioner are set aside: The bail bonds, if any, furnished, by the Petitioner be discharged and the fine, if realised, be returned. The seized car be returned to the owner of the vehicle. Final Result : Allowed