Order.- The accused in this case has been convicted under section 4(1)(j) of the Mysore Prohibition Act and sentenced to pay a fine of Rs.10 in default to undergo simple imprisonment for two days. The accused challenges the correctness of the decision on the ground that the judgment of the learned Special First Class Magistrate, was based on presumption raised under section 4(2)(a) of the said Act. The said section reads as follows: “(a) It shall be presumed until the contrary is shown: (a) That a person accused of any offence under clauses (a) to (j) of sub- section (1) has committed such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug,/or the possession of which he is unable to account satisfactorily”. (Italics mine.) From this it is clear that before any presumption could be raised under this section some material mentioned in that section must have been in the possession of the accused for which he is unable to account satisfactorily. Only then the presumption in question could arise. In the instant case, nothing was found on the person of the accused. He was only found smelling arrack. As such the lower Court erred in raising presumption and convicting the accused. See The Public Prosecutor v. Chinnappa Pujari1. The learned Additional Assistant Advocate-General has brought to my notice that the complaint in this case was originally filed under section 5 of the Mysore Prohibition Act. The accused was tried summarily. He was also asked questions under that section. But at a later stage, the learned Public Prosecutor applied that the accused may be convicted under section 4(1)(j) of the Act. The learned Magistrate has accepted this request and convicted the accused under the said section. To my mind this appears to be improper. The facts of the case disclose that the accused has been prejudiced by this procedure. It is unnecessary for me to decide whether the trial is improper or illegal. In the result, this revision petition is allowed. The conviction is set aside and the fine if paid will be refunded to the accused. S.V.S. ----- Petition allowed.