1. On account of the conflict of decisions regarding the scope and interpretation of S.55 and 58 of the Abkari Act, this revision has been referred to Division Bench. First, the facts.

2. The petitioner is running a stationery shop. On April 26, 1989 he was found to be in possession of 15 litres of 'Arrack' kept in a plastic container and 27 bottles of 'Arrack' each containing 180 ml. He was prosecuted for the offence punishable under S.55(a) of the Abkari Act.

3. The trial court convicted and sentenced the petitioner to undergo simple imprisonment for one year and to pay a fine of Rs.1000/-. In default, he was to undergo simple imprisonment for a further period of one month. He filed an appeal. The Appellate Court reduced the sentence of imprisonment to six months. However, the conviction under S.55(a) was upheld, hence, this Revision Petition.

4. Mr. Kunhikrishnan, learned counsel for the petitioner has made a two-fold submission. Firstly, it has been contended that the evidence on record does not prove the charge. In any event, the counsel submits that even if the prosecution story is believed, the petitioner could be punished only under S.58. The ingredients of S.55(a) are not satisfied.

5. No one has appeared on behalf of the State to support the conviction.

6. In view of the divergence of judicial opinion as expressed by different Single Benches, we consider it appropriate to notice the provisions of S.55(a) and 58 as these existed at the relevant time. These read as under:

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

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

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shall, on conviction before a Magistrate be punished, -

(1) for any such offence, other than an offence falling under Cl.(d) or (e), with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees:

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court. -

(i) such imprisonment shall not be less than six months and fine shall not be less than one thousand rupees for a first offence; and

(ii) such imprisonment shall be rigorous and shall not be less than one year and fine shall not be less than two thousand rupees for a subsequent offence;

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

"58. For possession of illicit liquor.- Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid therefor, shall on conviction before a Magistrate, be punished with fine which may extend to three thousand rupees, or with imprisonment for a term which may extend to six months, or with both."

7. A perusal of S.55 shows that any person found guilty under this provision can be awarded sentence of imprisonment for a term which may extend 2 years and with fine upto Rs.5000/-. Under S.58, the person found guilty can be "punished with fine which may extend to three thousand rupees, or with imprisonment for a term which may extend to six months, or with both." Thus, it is clear that according to the Legislature the offence under S.55(a) is more serious than the one under S.58.

8. The conflict of judicial opinion exists in the context of the meaning of "possession". In the cases of Rajeevan v. Excise Inspector (1991 (1) KLT 38) and Purushan v. State of Kerala (2002 (2) KLT 661), the view taken appears to be that to be culpable the possession must be in the course of import, export, transport or transit. Simple possession is not enough to attract the rigour of S.55(a). As again