ORDER : This petition is filed by the petitioner – accused seeking for a direction to set aside the order dated 11.08.2011 passed by the Appellate Court in Crl.A.No.46/2010 dismissing the appeal and thereby confirming the order of conviction and sentence dated 05.05.2010 passed by the Trial Court in C.C.No.2514/2008. By the said order dated 05.05.2010 the Trial Court has convicted the accused – petitioner herein for the offence punishable under Section 32 of the Karnataka Excise Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.3,000/-. 2. Heard the learned counsel for the petitioner and so also the learned HCGP for the State. Perused the judgment rendered by the Trial Court as well as the Appellate Court. 3. Factual matrix of the petition as per the case of the prosecution is that on 11.07.2008 the Head Constable attached to Excise and Prohibition of Lottery Enforcement Office had received a credible information that some person was illegally transporting liquor and accordingly they secured two panchas and went towards the Jannapura Nandini Circle. At about 11.30 a.m., they found a person in possession of a wire bag containing 24 bottles of liquor on a TVS moped. At once, he was apprehended and on enquiry it was found that he did not have any bill, pass or permit to possess the liquor bottles. On searching the bag, it was found to contain 24 bottles of Magic whisky of 180 ml. Bottles were taken out for sending it to the Chemical Examiner and it was sealed at the spot. The accused had informed that he had purchased those bottles for sale from one Mahabalesh of Sangam Bar and Restaurant and bill was not issued to him. Hence, the mahazar was drawn on the spot and accordingly, complaint was lodged with the New Town Police. The I.O. is then said to have recorded the statement of the witness and filed the charge-sheet. The accused appeared before the Trial Court and pleaded not guilty and claimed to be tried. The prosecution then examined in all four witnesses as PW1 to PW4 and got marked four documents as Exhibits P1 to P4 and a sample bottle as MO-1. The accused appeared before the Trial Court and pleaded not guilty and claimed to be tried. The prosecution then examined in all four witnesses as PW1 to PW4 and got marked four documents as Exhibits P1 to P4 and a sample bottle as MO-1. After hearing the prosecution and the defence counsel, the Trial Court passed the impugned judgment dated 05.05.2010 convicting the accused under Section 32 of the Karnataka Excise Act and sentencing him to undergo simple imprisonment for one year and to pay a fine of Rs.3,000/-. But however, Accused Nos.1 and 2 were acquitted for the offence under Section 34 of the Karnataka Excise Act. The said order of conviction and sentence passed by the Trial Court was taken up in appeal by accused No.1 – petitioner herein by preferring Criminal Appeal No.46/2010 before the Appellate Court. The Appellate Court as well, considering the material on record, by its order dated 11.08.2011 dismissed the appeal and thereby confirmed the order of conviction and sentence dated 5.5.2010 passed by the Trial Court. It is this order which is under challenge in the present petition by the petitioner - accused, urging various grounds. 4. Learned counsel for the petitioner contends that the Trial Court as well as the Appellate Court have committed an error in convicting the accused when the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The courts below have erred in relying on the evidence of PWs 1 to 3 who are interested and official witnesses. Further, their evidence also suffers from legal infirmities. Further the courts below have committed serious error in holding that there was motive on the part of the petitioner to commit the alleged offence. From the evidence of the prosecution witnesses, it can be inferred that PWs 1 to 3 have created and concocted a false case against the petitioner for statistical purpose of registering a case. The panch witness PW-4 was a passerby who was going that way who was asked to certify the seizure. The cross-examination of PW-4 reveals that he did not know anything about seizure except the fact that the bag contained more than twenty bottles. Hence, the evidence of PWs 1 to 3 is contrary to the evidence of PW-4 panch witness and do not corroborate each other. The cross-examination of PW-4 reveals that he did not know anything about seizure except the fact that the bag contained more than twenty bottles. Hence, the evidence of PWs 1 to 3 is contrary to the evidence of PW-4 panch witness and do not corroborate each other. The learned counsel for the petitioner contends that the courts below have lost sight of this fact and have committed an error in convicting the accused under Section 32 of the Excise Act, which has resulted in a serious miscarriage of justice. It is the further contention of the learned counsel that the Trial Judge ought to have drawn an adverse inference in the case of the prosecution since the prosecution has not marked the batch number, manufacturing date, etc., of the alleged seized bottles in the panchanama, which goes to the root of the matter. Thus, the complainant PW-1 upon the say of other official witnesses, deliberately foisted a case against the petitioner, only for statistical purposes. It is the vehement contention of the learned counsel that the accused ought to be convicted only if the offence alleged against him is proved by the prosecution beyond all reasonable doubt by positive and corroborative evidence. But in the present case on hand, the offence alleged has not been proved beyond all reasonable doubt. It is the further contention of the learned counsel that the alleged wire bag which was said to contain the liquor bottles has not at all been seized from the possession of the petitioner and has not been marked as a material object. Hence, the learned counsel contends that petitioner ought to have been given the benefit of doubt and ought to have been acquitted. Further, it is on the voluntary statement of the petitioner that the court below came to know that MO1 was purchased from Accused No.2. However, when the court below acquitted Accused No.2, it has committed an error in convicting Accused No.1 – petitioner herein on the same evidence. Learned counsel further contends that when 24 bottles were seized from the possession of the petitioner, the court below committed an error in sending only one bottle for chemical analysis. Further, the courts below ought to have seen that the prosecution has not examined any independent witnesses though they were very much available, which seriously doubts the case of the prosecution. Further, the courts below ought to have seen that the prosecution has not examined any independent witnesses though they were very much available, which seriously doubts the case of the prosecution. On all these grounds, the learned counsel for the petitioner contends that the order of conviction and sentence rendered by the Trial Court which has been affirmed by the Appellate Court be set aside and the petitioner be acquitted of the offence under Section 32 of the Karnataka Excise Act. 5. Per contra, learned HCGP for the State contends that the Trial Court has appreciated the evidence in a proper perspective and since it has been proved that the petitioner was transporting illicit liquor, had rightly convicted him under Section 32 of the Karnataka Excise Act. Further the Appellate Court as well, on a proper appreciation of the evidence on record, has rightly confirmed the order of conviction and sentence rendered by the Trial Court, which does not call for any interference in this criminal revision petition. He contends that there are no grounds to interfere with the judgments rendered by the courts below and hence prays for dismissal of the petition. 6. On a careful consideration of the contentions advanced by the learned counsel for both the parties and on an examination of the material on record, it is seen that the Excise Personnel on 11.07.2008 found the petitioner – accused No.1 in possession of a wire bag containing 24 bottles of Magic whisky of 180 ml on a TVS moped and on enquiry it was found that he did not have any bill, pass or permit to possess the said liquor bottles. The accused had informed that he had purchased those bottles for sale from one Mahabalesh of Sangam Bar and Restaurant and bill was not issued to him. Hence, the mahazar was drawn on the spot and accordingly, complaint was lodged with the New Town Police. But however, the case against Accused No.2 Mahabalesh has ended in acquittal. The present petitioner alone has been punished for the offence under Section 32 of the Excise Act. Though independent witnesses were available, the prosecution examined only official witnesses as PWs 1 to 3 and examined one panch witness as PW4. But however, the case against Accused No.2 Mahabalesh has ended in acquittal. The present petitioner alone has been punished for the offence under Section 32 of the Excise Act. Though independent witnesses were available, the prosecution examined only official witnesses as PWs 1 to 3 and examined one panch witness as PW4. But however, it is seen from the evidence of the said witnesses that the evidence of PWs 1 to 3 is contrary to the evidence of PW4, panch witness and further, their evidence also suffers from serious legal infirmities, full of omissions, contradictions and they do not corroborate each other. Further, the evidence of PW1 and PW2 are also not corroborative and suffer from material omissions. Further, in this case, though it is stated that the bottles were carried in a wire bag, the said wire bag which was used by the accused has not been seized. Further, though 24 bottles are said to have been seized, only one bottle was sent for chemical analysis, which seriously doubts the case of the prosecution. Remaining 23 bottles were not sent for chemical analysis. Rule 21 of the Karnataka Excise (Possession, Transport, etc) Rules, 1967 provides that no permit or licence under these rules shall be required for the possession or transport of the quantities of liquor mentioned in that Rule. At Sl.No.5, the permissible quantity of Whisky is 4.6 liters. The total quantity said to have been seized from the possession of the petitioner is 24 bottles of 180 ml. each = 4.320 liters. Out of that, the quantity sent for chemical analysis is 1 bottles x 180 ml = 0.18 liters. The permissible limit to possess and transport liquor without any permit or licence is 4.6 liters. The total quantity seized from the possession of the petitioner is 4.320 liters. A person can possess and transport 4.6 liters of liquor without licence. The petitioner was said to be possessing and transporting 4.320 liters. Hence, it comes within the permissible limit of 4.6 liters. Hence, I find that since there is no contravention of the provisions contained in Section 32 of the Karnataka Excise Act, I find that both the courts below have committed an error in convicting the petitioner under Section 32 of the Excise Act. Hence, it comes within the permissible limit of 4.6 liters. Hence, I find that since there is no contravention of the provisions contained in Section 32 of the Karnataka Excise Act, I find that both the courts below have committed an error in convicting the petitioner under Section 32 of the Excise Act. In view of the above reasons, I am of the view that the order of conviction and sentence rendered by the Trial Court which has further been affirmed by the Appellate Court, requires to be set aside. Accordingly, I proceed to pass the following: ORDER The revision petition filed by the petitioner – Accused No.1 under Sections 397 read with 401 of Cr.P.C. is hereby allowed. Consequently, the impugned order of conviction and sentence passed by the Trial Court in C.C.No.2514/2008 dated 05.05.2010 which was confirmed by the Appellate Court in Crl.A.No.46/2010 dated 11.08.2011 are hereby set aside. The petitioner is hereby acquitted of the offence punishable under Section 32 of the Karnataka Excise Act. If the petitioner has paid any fine amount of Rs.3,000/-, the same shall be refunded to him on proper identification.