The need for conscious possession and the burden of proof on the accused in cases of possession of forbidden articles.

JUDGMENT

S.B. Sinha, J.

1. The appellant along with one T.V. Raghavan Piliai (since deceased) and Ismail (absconding accused), were found to be in possession of 7985 litres of spirit in 42 barrels by the Circle Inspector of Police, Hosdurg.

2. Seizure of the said excise article was made on the basis of the information received by the said officer from DYSP, Kanhangad to the effect that spirit for the purpose of manufacturing arrack was stored in a house in Koolingal, without any permit. Admittedl all the three accused were found to be possession of the said excise article.

3. They were prosecuted under Section 5 of the Kerala Abkari Act ("the Act", for short and were found guilty therefor.

4. The contention of the appellant before us was that he was an employee of the said Ismail. The said defence has not beer accepted. It appears that in the body of the judgment of the learned Sessions Judge, provisions of Section 55 of the Act had not been correctly reproduced in so far as the words "transports, transits or possesses" after the words "imports, exports" and before the words "liquor or any intoxicating drug" were missing. Presumably, only on that premise, notice was issued and leave was granted.

Section 55 of the Act reads as under:

"55. For illegal import, etc.- Whoever in contravention of this Act or of any rule or order made under this Act-

a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or

b) Manufactures liquor or any intoxicating drug;

c) xxxxxxxxxxxx

d) taps or causes to be tapped any toddy producing tree, or

e) draws or causes to be drawn toddy from any tree; or

f) constructs or works any distillery, brewery, winery or other manufactory in which liquor is manufactured; or

g) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or

h) bottles any liquor for purposes of sale; or

i) sells or stores for sale liquor or any intoxicating drug shall be punishable.-

1) for any offence, other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and

2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both."

5. We may also notice the provisions of Section 58A of the Act which reads:

"For sale of certain preparations:- Whoever sells any preparation which he knows or has reason to believe is intended to serve as a substitute for alcohol or intoxicating drug shall, on conviction before a competent court, be punished with imprisonment which may extend to five years, or with a fine which may extend to fifty thousand rupees, or with both.

Provided that nothing contained in this section shall apply to the sale of any medicinal preparation for bona fide treatment, mitigation or prevention of disease in human beings or animals."

6. Section 64 of the Act raises a presumption in regard to commission of offence in certain cases.

7. If, therefore, a person is found to be in possession of excise articles it is for him to adduce sufficient and cogent evidence to rebut the said presumption.

8. Learned counsel appearing on behalf of he appellant before us would raise two contentions. Firstly, it was submitted that he High Court having found that the appellant has not the employee of the said Ismail, it as for the prosecution to show that he was conscious possession of the liquor or any intoxicating liquor punishable under Section 5(c) of the Act. Secondly, it was contended that, in any event, it was obligatory on the part of the prosecution to establish existence of mens rea on his part. In support of the aforesaid contention, reliance has been placed on Inder Sain v. State of Punjab1 and Ram Rattan v. State of Punjab2.

9. The Act was enacted by the Maharaja of