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 scope and ambit of the offences contemplated under Ss. 55(a) and 58 of the Abkari Act, both of which refer to the aspect of possession. It is the possession of the contraband that is made punishable under both the sections. But the sentence for the two offences are prescribed differently. For the sake of convenience the two sections may be extracted hereunder :

"S. 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, transits or possesses liquor or any intoxicating drug; or

(b) manufactures liquor or any intoxicating drug;

(c) cultivates the hemp plant (Cannabis Sativa) ..... (or collects any portion of such (plant) from which an intoxicating drug can be manufactured); or

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

(e) draws or cause 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 liquor or any intoxicating drug;

shall on conviction before a Magistrate be punished :-

(1) for any such offence other than an offence falling under clause or clause (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 clause (d) or clause (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."

xxx xxx xxx

"S. 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."

Obviously the words 'possesses' and 'possession' of liquor or intoxicating drugs appear in both of