JUDGMENT : AJAY MOHAN GOEL, J. 1. By way this revision petition, petitioner/accused has challenged the judgment passed by the Court of learned Additional Sessions Judge, Fast Track Court, Hamirpur, in Criminal Appeal No. 36 of 2007, dated 15.01.2010, vide which learned Appellate Court, while dismissing the appeal filed by the present petitioner, upheld the judgment of conviction and sentence imposed upon the present petitioner by the Court of learned Chief Judicial Magistrate, Hamirpur, in Case No. 206-I-05/20-III-06, dated 16.05.2007, whereby learned trial Court convicted the present petitioner for commission of offence punishable under Section 61 (1) (a) of Punjab Excise Act, as applicable to State of Himachal Pradesh (hereinafter referred to as =Act' ) sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 5,000/- for commission of offence punishable under Section 61 (1) (a) of the Act. 2. The case of the prosecution was that on 29.04.2005, at about 6:00 p.m. when PW5 ASI Chaman Lal and HHC Jagat Ram were present at main bazaar, a secret information was received that Joginder Singh (petitioner/ accused) had kept huge quantity of liquor and in case search was made, the same could be recovered. As per the prosecution, on the basis of said information, rukka Ext. PW5/A was prepared, which was sent to Police Station, on the basis of which, FIR Ext. PW5/B was registered. Witnesses PW2 Kishore Chand and PW1 Anil Kumar were associated and the search of shop of accused was conducted in the presence of said witnesses, which led to recovery of 12 bottles of country liquor bearing mark Una No. 1, each containing 750 ml. of country liquor. Permit was demanded from the accused for possessing the bottles which could not be produced by him. Out of bottles so seized from the accused, three bottles were retained as samples which were sent to C.T.L. Kandaghat for chemical analysis through PW4 Constable Chaman Lal. Result of chemical analysis Ext. PW5/E revealed that each sample of country liquor contained 50 % proof alcohol in it. Out of bottles so seized from the accused, three bottles were retained as samples which were sent to C.T.L. Kandaghat for chemical analysis through PW4 Constable Chaman Lal. Result of chemical analysis Ext. PW5/E revealed that each sample of country liquor contained 50 % proof alcohol in it. After the completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, he was accordingly charged for commission of offence punishable under Section under Section 61 (1) (a) of Punjab Excise Act, as applicable to State of Himachal Pradesh, to which he pleaded not guilty and claimed trial. 3. On the basis of evidence led by the prosecution both ocular as well as documentary, learned trial Court held that prosecution was able to prove its case against the accused that he was found in possession of country liquor in excess of the limit of retail sale and he had failed to produce any permit for possessing them as was required in law. On these bases, it was held by the learned trial Court that accused had violated the provisions of Section 61 (1) (a) of the Act and it convicted the accused. 4. Feeling aggrieved by the judgment so passed by the learned trial Court, accused filed an appeal which was dismissed by learned Appellate Court vide judgment dated 15.01.2010. While upholding the judgment of conviction passed by the learned trial Court it was held by the learned Appellate Court that the prosecution had established the case against the appellant/accused beyond the shadow of reasonable doubt and learned trial Court had correctly awarded the sentence of three months' simple imprisonment alongwith fine of Rs. 5,000/- on the accused as 12 bottles of country liquor, brand Una No. 1, were recovered from the accused and such type of liquor smuggling was causing loss to the State Exchequer. 5. The judgments so passed against the accused by both the learned Courts below are under challenge by way of this revision petition. 6. Mr. 5,000/- on the accused as 12 bottles of country liquor, brand Una No. 1, were recovered from the accused and such type of liquor smuggling was causing loss to the State Exchequer. 5. The judgments so passed against the accused by both the learned Courts below are under challenge by way of this revision petition. 6. Mr. Kapil Dev Sood, learned senior counsel appearing for the petitioner has argued that the judgment of conviction passed against the accused by the learned trial Court as well as judgment passed by learned Appellate Court are perverse because learned trial Court as well as learned Appellate Court failed to appreciate that the prosecution was not able to prove that the petitioner in fact was in possession of 12 bottles of country liquor. According to Mr. Sood it was admitted case of the prosecution that out of 12 bottles allegedly seized from the accused, only three were sent for chemical analysis. It was argued and urged by Mr. Sood that as only three bottles were sent for chemical analysis, it could not be assumed that remaining 9 bottles which were allegedly recovered from the accused were also containing country liquor. Mr. Sood further argued that out of three bottles which were allegedly recovered from the petitioner containing country liquor and sent for chemical analysis, a perusal of the report of Chemical Examiner demonstrated that country liquor was found in only two of them. He drew attention of this Court to report of the Chemical Examiner Ext. PW5/E, as per which opinion given after the chemical analysis of the samples of country liquor bottles was as under. “Opinion:- The samples of country liquor lots No. 1479 and 1479/2 contain 50.0 % proof alcohol strength each.” On the strength of the opinion so given by the chemical examiner, it was argued by Mr. Sood that as prosecution could prove on record that only two bottles allegedly recovered from the accused were containing country liquor and the same were within the permissible limit, his conviction for violating the provisions of Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh was totally perverse. On these bases, it was submitted by Mr. Sood that the judgment of conviction passed by the learned Trial Court and upheld by learned Appellate Court was liable to be set aside. 7. On these bases, it was submitted by Mr. Sood that the judgment of conviction passed by the learned Trial Court and upheld by learned Appellate Court was liable to be set aside. 7. On the other hand, Mr. Vikram Thakur, learned Deputy Advocate General argued that though Ext. PW5/E does refer to country liquor having been found only in two bottles out of three bottles sent to CTL Kandaghat but this did not absolve the petitioner from the commission of offence for which he stood convicted by both the learned Courts below. Mr. Thakur further argued that it was a matter of record that petitioner was apprehended with 12 bottles of country liquor. On these bases, it was urged by Mr. Thakur that learned Courts below rightly held the accused guilty of the offence for which he was charged with and the same did not call for any interference. 8. I have heard the learned senior counsel appearing for the petitioner as well as learned Deputy Advocate General and also gone through the records of the case as well as the judgments passed by both the Courts below. 9. Before proceeding in the matter, it is relevant to take note of what is the scope of revisional jurisdiction of this Court. It is settled law that the scope of revisional jurisdiction of this Court does not extend to re-appreciation of evidence. It has been held by the Hon'ble Supreme Court that the High Court in exercise of its revisional power can interfere only if the findings of the Court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where judicial discretion is exercised arbitrarily or capriciously. It has been held by Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan Versus Dattatray Gulabrao Phalke and Others, (2015) 3 Supreme Court Cases 123, that unmerited and undeserved prosecution is an infringement of guarantee under Article 21 of the Constitution of India. In this case, Hon'ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence. 10. In this case, Hon'ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence. 10. It is a matter of record that out of 12 bottles which were allegedly recovered from the petitioner, three were retained as samples, which as per the prosecution were sent to CTL Kandaghat for chemical analysis. It is also a matter of record that report of the Chemical Examiner, H.P.C.T.L. Kandaghat is to the effect that samples of country liquor, lot No. 1479/1 and 1479/2 contained 50% proof alcohol strength each. There is no opinion qua sample of country liquor “lot No. 1479/3”. A perusal of this document further shows that there is some interpolation/overwriting in the same and that numerical figure “2” mentioned in the opinion pertaining to lot No. 1479/3 had been subsequently converted into “3”. Be that as it may, the fact of the matter still remains that as per the report of the Chemical Examiner, only two samples were found to be containing 50% proof of alcohol strength each. Chemical Examiner was not examined as a witness by the prosecution. It is not a disputed issue that no permit is required for possessing two bottles of country liquor. From the record it cannot be said that prosecution was able to prove that accused in fact was in the possession of 12 bottles of country liquor without a permit. Prosecution was not even been able to prove that accused was in possession of three bottles of country liquor. Therefore, in these circumstances, when the prosecution was not able to demonstrate from the material produced on record that the accused in fact was in possession of bottles of country liquor in excess of what is permitted without a permit, learned trial Court erred in convicting accused for violating provisions of Section 61 (1) (a) of the Act and learned Appellate Court also erred in upholding the judgment of conviction so passed by the learned trial Court. Both the learned Courts below erred in not appreciating that in the absence of any evidence to demonstrate that the petitioner was possessing more than the permissible limit of country liquor bottles, he could not have been convicted for violating the provisions of Section 61 (1) (a) of the Act. 11. Both the learned Courts below erred in not appreciating that in the absence of any evidence to demonstrate that the petitioner was possessing more than the permissible limit of country liquor bottles, he could not have been convicted for violating the provisions of Section 61 (1) (a) of the Act. 11. This Court in 2003 CR.L.J. 1346, Mahajan v. State of Himachal Pradesh, Cr. Rev. No. 69 of 2000, dated 02.05.2002 has held: “In exercise of the powers conferred by Ss. 5 and 58 of the Punjab Excise Act, the Governor, Himachal Pradesh on 29-3-1985 issued an order bearing No. EXN.F (1)-4/76 published in Himachal Rajpatra (Extra-ordinary) on 30-3-1985 prescribing the limit for possession of Indian made foreign spirit (for short, IMFS) in respect of the areas/territories comprised in Himachal Pradesh immediately before 1st November, 1966. This order was issued by way of amendment of O. 2 of Himachal Pradesh Intoxicants Licence and Sale Orders, 1965. The relevant order reads:- “2-A. Limit for retail possession: The following are the maximum quantities of intoxicants which can be sold in each transaction in retail sale under the Punjab Excise Act, 1914, in the said area:- (1) Foreign spirit Two bottles each of the capacity of 750 ml. (2) Beer whether imported or made in India. Twelve bottles each of the capacity of 650 ml. (3) Cider (liquor manufactured by fermentation of juice of any fruit) whether imported or made in India. Six quarter bottles. (4) Country liquor Two bottles each of the capacity of 750 ml. (5) Country fermented liquor. Six quart bottles. (6) Bhang 100 grams. (7) Rectified spirit One pint of 375 ml. (8) Denatured spirit One bottle of 650 ml. Note.—The limit of transportation mentioned at Items Nos. (1) and (2) above shall be alternative with the limit mentioned at Item No. (4): Provided that a person may, for bona fide consumption by him, the members of his family, or his guest, purchase, transport and possess foreign spirit up to 12 bottles of the capacity of 750 ml. each inclusive of imported spirit and 36 bottles of the capacity of 650 ml. each inclusive of imported spirit and 36 bottles of the capacity of 650 ml. each of Beer on the authority of a permit in Form L-50 granted by the Excise Officer, holding the charge of the District, on payment of a permit fee according to the following scale for a financial year or part thereof:- Quantity Permit fee Exceeding six bottles of IMFS of 750 ml. each and 12 bottles of 650 ml. each of Beer but not exceeding 12 bottles of IMFS and 36 bottles of Beer. Fifty rupees only Note :- The possession limit by one family living in a separate and distinct premises will be six bottles of IMFS of 750 ml. each and 24 bottles of Beer of 650 ml. each at one time. Imported liquor will be considered as part of stocks of IMFS and bottles of foreign liquor which may be of one litre or two litres will be converted, for this purpose, to the limits prescribed for IMFS in 750 ml. bottles: Provided further that in case of possession and purchase of denatured spirit for industrial purposes, a permit may be obtained from the Excise Officers of the 1st Class as declared by the State Government.” (Emphasis supplied) In view of the above quoted order issued by the State Government, the permissible prescribed limit for possession of Indian made Foreign Spirit without permit at one time by a family is six bottles of IMFS of 750 ml. each and 24 bottles of Beer of 650 ml. each. In the present case, as per the prosecution story, eight bottles of XXX Rum were recovered from the possession of the accused. Admittedly, samples out of only three bottles were taken by the Investigating Officer and sent for analysis. Such samples were found to be of IMFS vide report Ex. P.W.5/E. In view of such report, at the most, the prosecution has been able to prove the possession of the accused only qua three bottles of IMFS. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the accused also contained IMFS. Before the accused could be convicted for the offence, the prosecution was obliged to prove that he was in conscious possession of IMFS in excess of the prescribed limit of six bottles of 750 ml. each. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the accused also contained IMFS. Before the accused could be convicted for the offence, the prosecution was obliged to prove that he was in conscious possession of IMFS in excess of the prescribed limit of six bottles of 750 ml. each. The prosecution, as stated above, could prove the possession of the accused only qua three bottles, which possession is below the prescribed limit. The conviction and sentence imposed upon the accused by the two Courts below, on this short ground alone cannot be sustained.” 12. This Court in Latest HLJ 2007 (HP) 1017, State of H.P. versus Ramesh Chand, Cr. Appeal No. 159 of 2000, decided on 21.06.2007 has held: “It is well settled law that in appeal against acquittal if two views are reasonably possible of the evidence on the record, then the view in support of acquittal of the case should be preferred. In the instant case the regrettable features are that the respondent was alleged to have been found in possession of 12 bottles of IMFL near the bus stand Sujanpur and it has come in evidence that many persons were present during that time but no attempt was made to associate an independent witness by the police in order to inspire confidence in the prosecution case in view of the fact that no article connecting the accused was found in his ruck-sack. Secondly, out of 12 bottles of IMFL, samples of only three bottles were taken, so the prosecution has left us in lurk as to what another nine bottles contained. Thirdly, there is no link evidence, who had taken the case property to the police station; further LHC Mahant Ram (PW-4) is stated to have taken the sample for analysis to Chemical Laboratory, Kandaghat, but as PW-4 did not whisper even a single word about it. No one came forward to say that the case property/samples were not tempered withy. It is imperative on the prosecution to over-rule the possibility of tempering with the case property/or the samples till its examination. Since link evidence is missing in the instant case, benefit of which has to be given to the accused. Lastly, the seal with which the case property was sealed was not produced by LHC Mahant Ram, with whom it was entrusted. Since link evidence is missing in the instant case, benefit of which has to be given to the accused. Lastly, the seal with which the case property was sealed was not produced by LHC Mahant Ram, with whom it was entrusted. In view of the above discrepancies, case of the prosecution does not inspire confidence and conviction cannot be sustained on the version given by the official witnesses before the trial court. Accordingly, the impugned judgment of acquittal cannot be disturbed. For the reasons aforesaid, the appeal merits dismissal which is accordingly dismissed. The respondent is discharged of the bail bonds, entered upon by him during the proceedings of the trial.” 13. This Court in 2009 (2) Shim. LC 208, Dharam Pal and another v. State of Himachal Pradesh, Cr. Rev. No. 4 of 2003, dated 8th April, 2009 has held: “According to prosecution, 48 bottles were recovered from the van. The prosecution case is that samples were taken only from four bottles which were ultimately sent for chemical examination and report of the Chemical Examiner Ex.PW-5/F was obtained. In Mahajan Vs. State of Himachal Pradesh, 2003 Cr. L.J. 1346, 8 bottles of XXX Rum were recovered but samples were taken from three bottles and such samples were found to be of IMFS. On those facts a learned Single Judge of this Court in para 12 has held as follows: “In view of such report, at the most, the prosecution has been able to prove the possession of the accused only qua three bottles of IMFS. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the accused also contained IMFS.” There is nothing on record to show that the bottles from which the samples were not taken were in fact containing liquor. In other words, there is no worth believing material on record to show that 44 bottles were containing liquor. Therefore, prosecution case at its best is that four bottles were containing liquor.” 14. In other words, there is no worth believing material on record to show that 44 bottles were containing liquor. Therefore, prosecution case at its best is that four bottles were containing liquor.” 14. In view of discussion held above as well as the law laid down by this Court, this revision petition is allowed and judgment of conviction and sentence imposed upon the petitioner by the Court of learned Chief Judicial Magistrate, Hamirpur, in case No. 206-I-05/20-III-06, dated 16.05.2007, is set aside alongwith judgment passed in Criminal Appeal No. 36 of 2007, dated 15.01.2010 by the Court of learned Additional Sessions Judge, Fast Track Court, Hamirpur. Petitioner is acquitted of the offence for which he was charged. Amount of fine deposited by the petitioner, if any, is directed to be refunded to him as per law. Pending miscellaneous application (s), if any, also stands disposed of.