ORDER :

1. These criminal revision petitions are directed against the judgment dated 18th March, 2006 passed by the Additional Sessions Court, (Adhoc-II), Kozhikode (for short “the appellate court”) in Crl. Appeal No. 165/2004 confirming the judgment dated 16th February, 2004 passed by the Assistant Sessions Court, Vatakara (for short “the trial court”) in S.C. No. 426/2001.

2. The revision petitioners/accused Nos. 1 and 2 faced trial for the offence punishable u/s 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules.

3. The prosecution case in short is that on 2.2.1998 at 5.45 p.m. the accused were found transporting 40 bottles of Indian Made Foreign Liquor (IMFL) each containing 180 of ml liquor in an autorickshaw bearing Regn. No. KL-11D 7594 at Rayarangoth from Mahe to Kerala without any valid documents and in contravention of the Abkari Act and the Rules.

4. On receipt of the summons, both accused appeared at the trial court. After hearing both sides, charge was framed against the accused u/s 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. The charge was read over and explained to the accused who pleaded not guilty.

5. The prosecution examined PWs. 1 to 7 and marked Exts.P1 to P12. MO1 to MO3 were identified. The accused were questioned u/s 313 of Cr.P.C. They denied all the incriminating circumstances brought against them during evidence. It was submitted that they are innocent. No defence evidence was adduced.

6. Considering the evidence on record, the trial court found the accused guilty u/s 55(a) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for a period of 2 years each and to pay a fine of Rs. 1,00,000/- each, in default to suffer simple imprisonment for a period of 6 months each as per the judgment dated 16th February, 2004.

7. Aggrieved by the conviction and sentence passed by the trial court, the accused preferred the appeal at the appellate court as Crl. Appeal No. 165/204. The appellate court as per the judgment dated 18th March, 2006 allowed the appeal in part confirming the conviction, but reducing the substantive sentence to one year from two years and default sentence to three months from six months. Challenging the conviction and sentence passed by the courts below, the first accused preferred Crl. R.P. No. 3847/2006 and the second accused preferred Crl. R.P. No. 3401/2006. Since both the revision petitions are interconnected, I am disposing of the same by this common order.

8. I have heard Sri. Anoop P.V. the learned counsel for the revision petitioners and Sri. Sanal P. Raj, the learned Public Prosecutor.

9. The learned counsel appearing for the revision petitioners impeached the findings of the courts below and resultant finding as to the guilt mainly on two grounds: (1) There is unexplained delay of two days in producing the contraband article at the court. (2) Out of the total 40 bottles seized, sample was drawn only from one bottle having 180 ml capacity and, hence, there is no evidence to show that the remaining 39 bottles, allegedly recovered from the accused, also contained Indian made foreign liquor. The courts below committed serious illegality in convicting the revision petitioners overlooking these vital points, submitted the counsel. The learned Public Prosecutor, on the other hand, supported the findings and verdict handed down by the courts below and argued that necessary ingredients of S.55(a) of the Abkari Act and Section 9 of the Foreign Liquor Rules had been established and the prosecution has succeeded in proving the case beyond reasonable doubt.

10. PW-1, the Preventive Officer in Vatakara Excise Circle Office detected the offence. PW-2, another Preventive Officer in Vatakara Excise Office accompanied PW-1. The evidence of PW-1 and PW-2 would show that while they were on patrolling duty on the date and time of the incident, they got reliable information that two persons were transporting foreign liquor from Mahe to Kerala in an autorickshaw bea