Koshy, J.

Doubting the correctness of the decision of the learned Single Judge in Krishnakutty v. State of Kerala (2005 (3) KLT 568), a learned Single Judge of this Court has referred this case to the Division Bench. Before answering the reference, we shall narrate the facts of this case.

2. Appellant was convicted for the offences punishable under Section 55 (a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules for illegal possession of more than the permissible quantity of liquor while he was traveling in a bus on 27.6.1997. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for one year more. The liquor seized from the bus allegedly from the possession of the appellant was 10 bottles of 180 ml. of Indian made Foreign Liquor and three bottles of 375 ml. of the same stuff. Ext.P4 seizure mahazer shows that the total quantity seized was 2.925 liters. During the relevant time, as per the foreign liquor rules, quantity that can be possessed and transported without permit was only 1.5 liters. Several contentions were raised by the appellant. First contention raised was that no liquor was found from him and he has not transported any liquor. Secondly, it was contended that even if he has transported the liquor in excess quantity, the offence would not come under the purview of Section 55(a) because he was not transporting or possessing the same in the course of import. Thirdly, it was contended that he was not in possession of excess quantity of liquor as only 0.555 liters was proved to be foreign liquor. Sample from one bottle of 180 ml. and another bottle of 375 ml. was sent for chemical analysis whereby prosecution failed to prove that other bottles seized contain Indian made foreign liquor. So the actual quantity of liquor found to be in his possession was at the maximum 375-ml. plus 180 ml. (total 0.555 liters), which is much below 1.5 liters of liquor, and accuse relied on the decision in Krishnankutty’s case (supra). In the above case, sample was taken from one bottle of 750 ml. of Indian Made Foreign Liquor whereas accused was in possession of 8 bottles. The learned Single Judge held that it was established that 750 ml. of Indian Made Foreign Liquor was in possession of the accused. Since samples from other 7 bottles were not tested, it cannot be assumed that liquid in that 7 bottles were Indian made Foreign Liquor. It was argued that what is proved in this case is that he was in possession of 0.550 ml. of foreign liquor. It was not proved that other bottles contained foreign liquor, and therefore, it cannot be held that he was in possession of excess quantity of liquor, even if it is proves that the entire bottles were seized from him.

3. The learned Single Judge was of the opinion that the above view is contrary to the decision of the Apex Court in Vijendrajit Ayodhya Prasad Goel v. State of Bombay (AIR 1953 SC 247). There the similar contention raised was not accepted. Apex court held as follows:

5. “Mr. Umrigar next contended that only one bottle out of the articles recovered at the raid was sent for analysis and that it was not proved that all the bottles and the drums that were recovered from the godown contained rectified spirit. He said these might well have contained phenyle, the manufacture of which the company admittedly was carrying on in that godown. This argument cannot be seriously considered. It was wholly unnecessary to send all the bottles recovered by the police in the presence of panches and which contained the same stuff for purpose of analysis. This argument is therefore rejected.”

From the godown of the accused, 108 bottles and 2 drums of liquor were seized. Only samples from one bottle were sent for analysis. The Honorable Supreme Court rejected the contention that all the bottles recovered or samples from the same ought to have been forwarded for analysis and held that seized bottles c