K. HEMA, J.

1. On a finding that accused was in "possession" of, or "transporting" Indian made foreign liquor ('I.M.F.L', for short), can he be convicted for offence under Section 55(a) of the Abkari Act ('the Act', for short) read with Rule 9 of the Foreign Liquor Rules ('the Rules', for short)? Under what circumstances, presumption under Section 64 of the act can be drawn? The above important questions arise for consideration in this revision.

2. According to prosecution, on 9.7.1996 at about 12.30 p.m., while Excise officials were on duty at a place called "Azhiyoor", revision petitioner was found travelling in a bus plying on the route, Thalassery- Vadakara via Mahe. He had with him, 10 bottles of 'I.M.F.L', each containing 375 ml. of liquor (3.750 litres). He was arrested and contraband articles were seized, under a mahazar, Ex.P-2. A case was registered against him and after investigation, a report was filed before Magistrate Court, alleging offence under Section 55(a) of Abkari Act read with Rule 9 of Foreign Liquor Rules.

3. PWs.1 to PW-3 were examined and Exts.P-1 to Ex P-3 and MO-1 series were marked on its side. Accused contended at the time of questioning under Section 313 of Criminal Procedure Code, that this is a false case but, did not adduce any evidence. On conclusion of trial, Magistrate court convicted revision petitioner under Section 55(a) of the Act read with Rule 9 of the Rules to undergo simple imprisonment for 6 months and also to pay fine of Rs. 25000/- and in default, to undergo simple imprisonment for 6 months. In appeal, Sessions Court confirmed the conviction and sentence. Hence, this revision.

4. Sri. Kunhikrishnan, learned counsel appearing for revision petitioner argued that according to prosecution, revision petitioner committed offence under Section 55(a), by acting in violation of Rule 9 of the Rules. Rule 9 of the Rules prohibits "import" of I.M.F.L but, there is absolutely no evidence to prove that accused imported of I.M.F.L into Kerala. Hence, conviction of petitioner under Section 55(a) read with Rule 9 of the Rules is illegal, it is argued.

5. Sri. K.S. Sivakumar, learned Public Prosecutor argued that it is not correct to say that there is no evidence to prove that I.M.F.L was "imported" into the State. On the bottles of I.M.F.L seized in this case, stickers of the Kerala State Beverages Corporation ('K.S.B.C', for short) were absent. Foreign liquor licence is issued in Kerala only to KSBC and bottles of I.M.F.L which are to be sold in Kerala shall have stickers on them, referring to batch number etc., assigned by K.S.B.C, it is submitted. But, stickers were absent on the bottles seized from accused, as revealed from the evidence of PW-2 and also from Ext.P-2 mahazar. This itself indicates that accused has imported I.M.F.L into the State, it is strongly argued.

6. Further, petitioner was found in a bus plying through Mahe, which is a place lying outside Kerala, and it can be presumed that he imported I.M.F.L into Kerala. It was also argued that as per evidence, petitioner was having 10 bottles of I.M.F.L in his possession and he had no satisfactory explanation for possession. Hence, presumption under Section 64 of the Act can be drawn against accused to hold that he is guilty of offence under Section 55(a) of the Act., it is argued.

7. On hearing both sides and on going through the records and also impugned judgment, at the very outset, I notice something quite interesting in this case. "Import" is the overt act which is to be proved to constitute the alleged offence in this case. But, trial court convicted petitioner, on the finding that he was in "possession" of I.M.F.L and appellate court confirmed conviction, on a finding that petitioner "transported" Indian made foreign liquor. Prosecution itself has no case that petitioner was either in illegal "possession" of I.M.F.L or was "transporting" the same.

8. The courts below did not even take care to find out whether accused "imported"