The appellant was prosecuted by the Sub Inspector of Police, Vythiri for an offence punishable under Section 55(a) of the Abkari Act.

2. The case of the prosecution as unravelled through the oral and documentary evidence is the following:-

On 15-11-1997 at about 8 a.m. the appellant was found in possession of 6 litres of Indian Made Foreign Liquor (IMFL for short) by name “Western Doctors Brandy” consisting of 3 bottles each of 750 ml. capacity and 10 bottles each of 375 ml. capacity in MO4 bag carried by him in the varandha of a shop at the Pozhuthana – Vythiri junction. The detection of the appellant was by the Circle Inspector of Police, Vythiri during patrol duty at 8. a.m. The appellant was arrested and two samples of 180 ml. each were taken from one of the 10 bottles of 375 ml. capacity. The sample bottles were sealed and packed and seized along with the rest of the bottles under Ext.P2 seizure mahazar prepared by PW5 from the spot. The accused was arrested and taken along with the contraband liquor and seizure documents to the Vythiri Police Station. After reaching the Police Station, PW5 gave Ext.P3 First Information Report on the basis of which the above case was registered as Crime No. 138 of 1997 of Vythiri Police Station. The properties including the sealed sample bottles were produced before the Chief Judicial Magistrate, Kalpetta on 19-11-1997 and were received in Court as P.R.-313/97. During the course of investigation, Ext.P4 forwarding note was submitted requesting that the sample bottles be forwarded to the Chemical Examiner, Kozhikode for analysis. The said request was complied with by the Magistrate and Ext.P5 is the Chemical Analysis Report as per which the sample bottles contained 42.37% and 42.20% by volume of ethyl alcohol. PW1 Moideenkutty is an attestor to Ext.P1 Scene Mahazar. PWs 2 and 3 are independent witnesses to the search and seizure. They were also attestors to Ext.P2 Seizure Mahazar. Except admitting their signatures in Ext.P2, both of them turned unfriendly to the prosecution. PW4 was the A.S.1 of Vythiri who accompanied the detecting Officer on 15.11.1997. He supported the prosecution. MO1 series are the three bottles each of 750 ml. capacity and MO2 series are the remaining 9 bottles each of 375 ml. after sampling. MO3 is the 10th bottle of 375 ml. capacity containing the balance quantity of liquor. It was from this bottle that PW5 took the two samples. MO4 is the bag in which all the 13 bottles were kept by the accused. Ext.P5 report of chemical analysis shows that two sealed bottles with the seals in tact were received on 25.11.1997 by the Chemical Examiner, Kozhikode along with the covering letter dated 25.11.1997 of the Chief Judicial Magistrate, Kalpetta dispatched through Police Constable No. 567 and that after analysis the sample bottles were found to contain 42.37% and 42.20% by volume of ethyl alcohol.

3. The learned counsel appearing the appellant placing reliance upon the decision in Krishnankutty v. State of Kerala – 2005(3) KLT 568, contended that since the two samples were taken only from one of the 10 bottles, and there were three other bottles of different capacity, it cannot be said that all the 13 bottles contained IMFL. As per SRO 127/1999 issued under G.O.(P) No. 22/99/TD dated 05.02.1999 as amended by SRO 725/03 issued under G.O. (P) 127/03/TD dated 02.08.2002, the maximum quantity of IMFL which a person can possess under Section 13 of the Abkari Act is 3 litres. When the bottle from which the two samples each of 180 ml. were drawn has a total capacity of only 375 ml. and the prosecution has not been able to show that the rest of the bottles contained IMFL, it should be presumed that the appellant was carrying only 375 ml. of IMFL. It is well within the permissible quantity as per the orders issued by the Government under Section 13 of the Abkari Act.

4. I am afraid that I cannot agree with the above submissions. All the 13 bottles seized in this case were be