ORDER The revision petitioner is the accused in C.C.No.442 of 1984 on the file of the Special Judicial First Class Magistrate (Prohibition), Erode. 2. The gravemen of the accusation against the petitioner is that he allowed toddy to be tapped from his coconut thope situate in Ariyankattu Valagu without having any valid permit and this was noticed by P.Ws.1 and 2 the police officials belonging to Malayampalayam Police Station at 6 P.M. on 9.8.1980 when one Periaswamy was actually tapping toddy in the coconut grove. 3. The trial Court acting upon the evidence of P.Ws.1 and 2, found the revision petitioner, guilty of the offence under Sec.4(1)(d) of the Tamil Nadu Prohibition Act, 1937, convicted and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs.500, in default to suffer rigorous imprisonment for six months. Aggrieved by the conviction and sentence, the revision petitioner preferred C.A.No.69 of 1985 on the file of the Additional Sessions Judge, Periyar District at Erode. The learned Sessions Judge also dismissed the appeal, confirming the conviction and sentence, giving rise to this revision petition. 4. The learned counsel appearing for the revision petitioner was absent. The records of the case had been perused. The learned Government Advocate made his submissions on behalf of the respondent. 5. On a perusal of the records, it is shocking to find that there is no tangible material available to come to a conclusion that the thope from which the toddy was tapped by one Periaswamy on the relevant day when there was a prohibition raid by P.Ws.1 and 2 belonged to the revision petitioner. The investigating agency did not care to produce any evidence, oral or documentary, to point out that the revision petitioner is the owner of the thope or at lease he is in possession and enjoyment of the thope. The explanation offered by P.Ws.1 and 2 in their evidence in favour of the prosecution is no answer at all and the misfortune of the prosecution in not being in a position to procure the testimony of any witness in proof of the accusation levelled against a person accused of the offence should not become the misfortune of the person facing such a charge. Practically, there is dearth of evidence available in this case in proof of the thope from which toddy was tapped by one Periaswamy on the day in question belonging to the revision petitioner. For fastening or mulcting criminal liability under Sec.4(1)(d) of the Tamil Nadu Prohibition Act, 1937, it is incumbent upon the prosecution to prove clinchingly that the tree from which toddy was tapped belonged to the person facing the charge or at least he was in possession and enjoyment of the same. There being no such evidence as against the revision petitioner, it goes without saying that the conviction and sentence deserve to be set aside. 6. In the result, the revision is allowed. The conviction and sentence are set aside. The fine is directed to be refunded to the petitioner. B.S. ----- Petition allowed.