The literal meaning of the words used in the enactment, legislative history, and purpose should be considered while interpreting an enactment.

The accused in C.C.No.14 of 1993 of the Judicial First Class Magistrate Court, ' Kuthuparamba, who was also the appellant in Crl.A.No. 3 of 1994 of the Sessions Court, Thalasscrry, is the petitioner. He had been concurrently found guilty under S.55(a) of the Abkari Act, convicted and sentenced to undergo R.1. for six months and to pay a fine of Rs.1,000/- in default to R.I. for six months.

2. The allegation against him was that on 29-7-92 at 4.45 p.m. PW.1, the Assistant Excise Inspector, Mattannur Range and party found him in possession of 3 litres of indigenously manufactured arrack for illicit sale. Indeed apprehension and seizure of illicit arrack from his possession were not seriously disputed, quite rightly in view of the acceptable oral and documentary evidence against him. But then it was contended that on the evidence and documents the conviction under S.55(a ) was illegal, that the offence disclosed was under S.58 and that in the particular facts and circumstances a custodial sentence was unwarranted and that fine will be adequate.

3. I heard counsel for the petitioner and the Additional Director General of Prosecutions.

4. There is indeed sonic confusion as to the scope of the above two provisions in Chapter IX of the Abkari Act, which provide for penalties. The ingredients and scope of the sections are indeed different. S.55 starts with the heading "for illegal import etc." and (a) states:

"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, export (transports, transits or possesses) liquor or any intoxicating drug;"

On a plain reading of the section it is clear that whoever in contravention of the Act or any rule or order made thereunder or of any licence or permit obtained under the Act "imports", "export" and incidental thereto "transport, transits or possesses" liquor or any intoxicating drugs, commits an offence and on conviction is liable to punishment as prescribed. It is such possession of liquor in connection with or in the course of import, export or movement from one State to another state or territories of this state, which is made penal under S.55(a ). S.58 deals with "possession of illicit liquor" or intoxicating drug knowing the same to be unlawfully imported, transported or manufactured and that is made punishable. The words possesses-possession used in these sections are in different contexts as is quite obvious.

5. While interpreting an enactment the court should ordinarily go by the literal meaning of the words used. In appropriate cases the court can also take into consideration the antecedent history, legislation, its purpose and the mischief it seeks to suppress (AIR 1962 SC 955). The words "transport, transit or possess" in sub clause (a) of S.55 were substituted by Act 10 of 1975, with the object of regulating movements of liquor and intoxicating drugs throughout the State. Act 1/1077 contained no provision to regulate the movement of liquor or intoxicating drugs from one place in a neighbouring State or Union Territory to another place in the State or Union Territory through the territories of the State of Kerala. Such movements of liquor or intoxicating drugs were being done without the knowledge of the Excise Authorities of Kerala, who were unable to prevent the sale of such goods in the State or other malpractices in the course of such movements. (Sec the statement of objects and reasons for Act 10/75). It was in that background and to prevent the mischief and plug and loopholes in the law that existed the above words were incorporated in S.55(a) by the above amendment of the Act.

6. The prosecution had no case that the petitioner was found in possession of liquor in the course of export or import or movement through the State territory to attract S.55(a ) of the Act. On the evidence and relevant materials the offence made out was only punishable under S.58.

7. Admittedly, petitioner is not a