The interesting question that is posed in this case is with regard to the ingredients necessary for constituting the offence under S. 55(a) and S. 58 of the Abkari Act.

The accused, it was alleged, was found in possession of 8 litres of arrack intended for sale kept in a plastic keg of 10 litres capacity in a public place at about 8 p.m. on 25-2-1992. Based on the evidence of PW1, who is the Preventive Officer, who made the seizure, as also PW 2, who is an Excise Guard, the trial Court found the accused guilty of the offence under S. 55(a) of the Abkari Act and sentenced him to undergo R.I. for six months and to pay fine of Rs. 1,000/- (in default R.I. for three months).

The learned counsel for the petitioner did not press before me any contention with regard to the fact of seizure of the arrack in question, but it was contended that the conviction should have been for offence under S. 58 of the Abkari Act not under S. 55(a) based on the said contention it was further submitted that the substantive term of imprisonment might be set aside and the imposition of fine ordered instead.

For considering the grant of the benefit it is necessary to understand and distinguish the