Possession of liquor does not constitute an offence under the Abkari Act in the absence of evidence of illegal import or transport.

J U D G M E N T

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Appellant is the accused in SC No.372/2006 of the Additional Sessions Court, Adhoc-II, Thalassery, who stands convicted under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹1 lakh, in default to undergo rigorous imprisonment for one more year.

2. The prosecution case is that on 18.11.2004 at

5.30 p.m. the appellant was found in possession of 10 bottles each containing 180 ml. of Indian Made Foreign Liquor, in contravention of the provisions of the Abkari Act .

3. The offence was detected by PW1, Excise Inspector of the Kannur Excise Range. He seized the contraband through Ext.P1 mahazar and placed the accused under arrest through Ext.P2 arrest memo. One bottle was taken as sample. He registered Ext.P4 crime and occurrence report. The scooter in which the accused had kept the contraband, the contraband, sample and the accused were produced before court on 19.11.2004. On getting the scooter and the balance contraband returned, the same were produced before the Assistant Excise Commissioner. Inventory was prepared. On getting Ext.P7 certificate of chemical analysis, which shows that the sample contained 37.21% by volume of ethyl alcohol, he filed the complaint.

4. On the side of the prosecution, PWs 1 to 4 were examined and Exts.P1 to P9 were marked. No defence evidence was adduced. The court below found the appellant guilty of the offence under Section 55 (a) of the Abkari Act , convicted him thereunder and sentenced him as aforesaid.

5. Heard learned counsel for the appellant and learned Public Prosecutor.

6. According to the learned counsel for the appellant, even if the so-called possession of the contraband is admitted, it could not have invited an offence under Section 55 (a) or 58 of the Abkari Act . According to the learned counsel for the appellant, the conviction and sentence passed by the court below under Section 55 (a) are liable to be set aside.

7. PW1 was the Excise Inspector, who detected the offence. According to him, he saw the accused standing near a scooter parked at the side of the road and was attempted to take something from the tool box of the scooter. He approached the accused and inspected the tool box. He could see 10 bottles each containing 180 ml. of arrack, and consequently, the search and seizure. PW1 has no case that those bottles do not contain the labels of the Kerala State Beverages Corporation. At the same time, according to PW1, the said bottles contained IMFL. It is the specific case of PW1 that the labels on the bottles declared that the said IMFL was manufactured in Pondicherry. Strangely enough, it has not been mentioned by PW1 that the said IMFL was meant for sale in Pondicherry only.

8. When there is no declaration or evidence that the said contraband was meant for sales in Pondicherry only, it cannot be said that the said quantity of IMFL was illegally imported within the meaning of Section 55 (a) of the Abkari Act . In order to attract an offence under Section 55 (a) of the , the possession should be in the course of illegal import, illegal export or illegal transport. In the absence of any concrete evidence to show any illegal import or illegal transport, it cannot be said that the possession of the contraband by the accused has invited an offence under Section 55 (a) of the .

9. An offence under Sections 58 of the Abkari Act also cannot be invited in the case. There is absolutely nothing to show that the bottles did not contain the labels of the Kerala State Beverages Corporation. If the same were purchased from the Kerala State Beverages Corporation, it would not have normally invited an offence at all when the quantity is only 1.80 litres. Ext.P1 also does not contain any material to show that the bottles did not contain the labels of the Kerala State Beverages Corporation. In Ext.P1 also, the specific allegation is that the accused was found in possession of IMFL manufactured