1. Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, “Cr. P.C.”).

2. The appellant/accused was convicted by the learned Additional Sessions Judge for offences punishable under Sections 55(i) and 58 of the Abkari Act (in short, “the Act”). Separate sentences were imposed on the accused and it was directed that the substantive sentences should run concurrently.

3. The prosecution case: -

On 20.04.1998, the accused was found transporting 20 bottles of Indian Made Foreign Liquor (in short, “IMFL”), each bottle containing 750 ml. of liquor, in two big shopper bags. It is further alleged that he had secreted and stored 20 bottles of 375 ml. and 70 bottles of 180 ml. each of the same liquor for sale. Hence the prosecution contended that the accused had violated the above provisions of the Act.

4. After closing the investigation, a charge was filed before the learned Magistrate. Finding that the case was exclusively triable by a Court of Sessions, learned Magistrate committed the case to the Sessions Court. Thereafter, it was made over to the Additional Sessions Court. Learned Additional Sessions Judge framed charges and at the time of trial, four witnesses were examined and eight documents and four material objects were marked. On evaluating the evidence adduced before the court, the learned Additional Sessions Judge found the accused guilty and convicted and sentenced him.

5. Heard Sri. Ravikrishnan, learned counsel for the appellant/accused and Sri K.K. Rajeev, learned Public Prosecutor.

6. Learned counsel for the accused contended that there is no legal basis for the conviction. It is also submitted that the prosecution has not alleged any fact to indicate that the accused was engaged in sale of liquor or he stored liquor for sale. Therefore, it is contended by the learned counsel for the accused, the conviction of the appellant under Section 55(i) of the Act is patently illegal.

7. Another contention raised by the learned counsel for the accused is that conviction under Section 58 of the Act is also not based on sound legal principles. Essential ingredients to attract Section 58 of the Act have not even been alleged by the prosecution, leave alone the matter of proof, contended the learned counsel.

8. Per contra, learned Prosecutor contended that testimony of the material witnesses on the side of prosecution coupled with documents prepared contemporaneous to detection of the offence would indicate that all the ingredients to attract the offences under Sections 55(i) and 58 of the Act have been made out.

9. Before dealing with the legal issues raised, it will be apposite to go through the evidence in the case. PW1 on 20.04.1998 was working as the Excise Inspector, Irinjalakuda. He received an information that the accused was engaged in sale of illicit liquor. PW1 has definitely spoken about the identity of the accused. At about 4 p.m. on 20.04.1998, while PW1 and party were patrolling through the informed area, they found the accused approaching by holding two big shopper bags in each hand. When the accused saw the Excise Officers, momentarily he became perturbed and tried to withdraw from the place. He was restrained by the Excise Officers and the big shopper bags possessed by him were examined. He was possessing ten bottles, apiece containing 750 ml. of Rum (IMFL) in each big shopper. The prosecution case, spoken to by PW1, is that he was physically possessing 20 bottles of IMFL. When he was questioned, information could be elicited that he secreted liquor in a nearby channel. As informed by the accused, the detecting officer and party went to the nearby channel and found out 20 bottles of IMFL, each containing 375 ml. and 70 bottles of IMFL, each containing 180 ml. hidden under dry leaves in the channel. PW1 would depose that altogether 35 litres of IMFL was in the possession of the accused. Each bottle contained label as “New Master XXX Rum, Blended and Bottled in the Excise Bond