1. On 19.8.2000 at about 6 p.m at the Azhiyoor check post the appellants were allegedly found transporting 500 litres of spirit in a car. They were tried for the offence under Section 55(a) of the Abkari Act. The trial ended in their conviction. Each of them has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. One lakh, and in default of payment of the fine to undergo simple imprisonment for a further period of three months. The legality and correctness of the order of conviction and the sentence are called into question.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. The incident that led to the registration of the case has been narrated by PW1 Divakaran and PW6 Gangadharan Nair, who were preventive officers attached to the Excise Office, Kozikode during the relevant period: On 19.8.2000 at about 6 p.m they were on duty at the check post on the National Highway at Azhiyoor, when they checked the car bearing registration No. CTA 7487 which came from Mahi direction. The first appellant was the driver of the vehicle; the second appellant was sitting beside him. Two concealed tanks were noticed inside the vehicle; they contained 500 liters of spirit. The car and the spirit were taken into custody and 375 ml of spirit was taken as sample in a bottle. The remaining spirit was emptied into four containers. The containers and the sample bottle were sealed and labelled. The signatures of the appellants and witnesses were taken on the labels. PW1 also put his signature on the labels. He prepared Ext P1 mahazar and arrested the appellants and produced them along with the seized articles before PW3 Excise Inspector, who registered the case.

4. It is not in dispute that on the next day of the occurrence PW3 produced the appellants and the seized articles before the Magistrate concerned. Ext P1 report issued by the Chemical Analyst for his examination of the contents of the sample which was forwarded by the Magistrate at the request of PW3 proves that it was spirit.

5. PW2 resided near the check post where the occurrence took place. He admitted that at the request of the Excise Officers he put his signature in Ext P1 mahazar, but denied that he witnessed the seizure of arrack.

6. It is not in controversy that the appellants were in the car and spirit was transported in it and the excise officers arrested them at the check post. The defence is that they were only passengers in the car and were not aware of the transportation of the contraband in it.

7. Though the initial and essential question is whether the appellants were in conscious possession of the contraband, some questions relating to the procedure followed by the excise officers raised by the learned counsel may be considered first. 8. One of the contentions raised by the learned counsel for the appellants is that the excise officers took only one sample from the contraband allegedly seized by them though it was mandatory to take three samples as provided in ‘Rule’ 34 in Chapter XXV in the Kerala Excise Manual, the relevant portion of which runs as follows:

Three samples of not less than (1) 130 grams weight from each distinct kind of excisable drug and (2) two liters or such smaller quantity as may be available of each kind of liquor or wash may be taken in the presence of the Excise Inspector or senior most Excise Officer present and the accused. Each set of these samples then should be sealed and marked with the same number or mark the particulars of which should be entered in the appropriate columns of the contraband register and in the occurrence report of the case.

8. Reliance is placed on the decisions of this court in Crl.A.No.47 of 2006 (Gopalan v. State of Kerala), Ashokan v. State of Kerala (2016 KHC 3285) and Biju v State of Kerala (2017(2) KLT 325). Each of these decisions holds that the provision in the Manual is mandatory and its non compliance is fatal.

9. In Gopalan’s case (Crl.A.No.47 o