The accused has faced trial for the offence under Section 55(a) of the Abkari Act before the Additional Sessions Court (Ad hoc-I), Thodupuzha. He was found guilty and, therefore, convicted and sentenced thereunder to undergo rigorous imprisonment for six months and to pay a fine of rupees one lakh, or in default, to undergo simple imprisonment for three months. The same is under challenge.

2. The facts of the case are that on 21-8-2000, at about 3.30 P.M., the appellant was found carrying 5.25 litres of Indian made foreign liquor, in MO.2 series, six bottles of 750 ml. Each and MO.3 series, two bottles of 375 ml. Each. Along the Thodupuzha – Muvattupuzha road. In front of the Village Office, Thodupuzha, MO.2 series and MO.3 series were seized by the Excise officials under Ext.P1 mahazar, attested by PW.2. C.R.No.13 of 2000 was registered and, P.W.3, the Excise Inspector, conducted investigation. He obtained Ext.P5 chemical analysis report. The trial court accepted the evidence and convicted and sentenced the appellant as stated above.

3. The question that has been raised by the learned counsel Mr. Shaji Thomas Porkkattil, is that Ext.P5 chemical analysis report shows that out of eight bottles of Indian made foreign liquor seized, sample was taken only from one bottle of 750 ml. Capacity. Therefore, it is submitted that the prosecution has not established whether the remaining bottles were of Indian made foreign liquor or not. Counsel, hence, submitted that, as only one bottle of 750 ml. Capacity was found containing Indian made foreign liquor, it comes within the permitted capacity of 1.5 litres. Therefore, the prosecution failed to prove the offence alleged against him under Section 55(a) of the Akbari Act, is the submission. Hence, counsel prayed to set aside the conviction and sentence.

4. The counsel relied on Gaunter Edwin Kircher v. State of Goa (AIR 1993 SC 1456). That was a case where two pieces of charas weighing seven grams and five grams respectively, were found in the possession of the accused, a German National, at Calangute Beach near Panjim, Goa. PW.3, the Sub Inspector of Police seized the same. One of the pieces, weighing less than five grams, was sent for chemical analysis. The other piece, weighing 7 grams, or a part thereof, by way of sample, was not sent for chemical analysis. PW.1, the scientist, after examination, certified that the specimen was charas. PW.2, the panch witness supported the case of the prosecution. When the accused was examined under Section 313 Cr.P.C., he maintained that he did not posses charas, but had only a pouch containing tobacco, and the case was falsely foisted against him. During the trial it was contended that even if the prosecution case is accepted, it could only be a case of possession of five grams of charas, which is a small quantity and, therefore, the accused was entitled to the benefit of Section 27 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’. However, the trial court convicted the accused, accepting the evidence of the prosecution. The contravention of Section 50 of the Act was not found favour with the High Court. The Apex also accepted the same.

5. But, an important question was raised before the Apex Court, viz; as only one out of the two pieces of the contraband seized, weighing five grams, alone was chemically examined, and the remaining substance or part thereof not having been subjected to chemical examination, to establish the same also was charas, a narcotic drug, in the absence of any other acceptable evidence, the remaining non-examined substance could only be regarded as some other material, like tobacco, which is not covered by the Act. In that situation, the contraband seized and proved through chemical examination comes under small quantity, within Section 27 of the Act. Analyzing Section 27 of the Act, the Apex Court came to the conclusion that five grams of charas possessed by the accused, a foreign national, was