IMPORTANT POINTS
Possession of IMFL by a person is not totally prohibited in the State. Section 13 of the Act prohibits possession of excess quantity of liquor than what is prescribed under the notification issued by the government. Permissible quantity of IMFL, which could be possessed by a person as on the date of occurrence, was three litres. In the instant case, the accused was found in possession of only 1.620 litres of IMFL. Therefore, unless the prosecution had proved that the liquor found in his possession was imported, the accused had no obligation to account for the permissible quantity of IMFL found in his possession.

ORDER :

The revision petitioner is the accused in the case S.C.No.670/2013 on the file of the Court of the Assistant Sessions Judge, Kozhikode.

2. On 27.06.2012, at about 20.15 hours, at the bus waiting shed near Mankavu Junction in Kozhikode, the Excise Inspector of Feroke Excise Range found the petitioner/accused in possession of a plastic cover which contained nine bottles, each having the capacity of 180 ml., of Indian Made Foreign Liquor (for short 'IMFL'). The bottles of liquor seized from the possession of the accused had the label “For Sale in Pondicherry State Only”. The accused committed the offences punishable under Sections 55(i) and 58 of the Abkari Act, 1077 (hereinafter referred to as 'the Act'). This, in short, is the prosecution case.

3. The trial court framed charge against the accused for the offences punishable under Sections 55(i) and 58 of the Act. The accused pleaded not guilty to the offences and he claimed to be tried.

4. The prosecution examined PW1 to PW6 and marked Ext.P1 to P8 documents and MO1 to MO3 material objects. No evidence was adduced by the accused.

5. The trial court found the accused not guilty of the offence punishable under Section 55(i) of the Act and acquitted him of that offence. The trial court found the accused guilty of the offence punishable under Section 58 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo simple imprisonment for a period of one month.

6. The accused filed Crl.A.No.79/2015 before the Court of Session, Kozhikode challenging the order of conviction and sentence passed against him by the trial court under Section 58 of the Act. The appellate court confirmed the conviction as well as the sentence against the accused and dismissed the appeal.

7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused in the case has filed this revision petition.

8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

9. PW1 is the Excise Inspector who detected the offence. He has given evidence in detail regarding the occurrence. PW2 is the excise guard who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident.

10. Ext.P8 is the chemical analysis report received in respect of the sample of liquid which was sent for analysis. It shows that the sample of liquid contained 42.89% by volume of ethyl alcohol.

11. Based on the evidence adduced by the prosecution, the courts below have concurrently found that the accused possessed nine bottles of IMFL of a total quantity of 1.620 litres and that the bottles had the label ”For Sale in Pondicherry State Only”. I find no sufficient ground, in exercise of revisional jurisdiction, to interfere with that finding.

12. Advocate Sri.Prasanth, learned counsel for the petitioner, contended that the prosecution could not, by establishing the aforesaid fact, prove that the petitioner committed an offence punishable under Section 58 of the Act.

13. Section 58 of the Act states that, whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under the Act not to have been paid therefore, shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.

14. Section 58 of the Act has got two limbs. The first limb deals with possession of any quantity of liquor or any intoxicating drug knowing the same to have been unlawfully imported, transported