The prosecution must prove the illegality of possession beyond reasonable doubt, especially when the context of prohibition is absent.

ORDER

This appeal is preferred against the judgment of conviction and sentence dated 25.8.2004 in S.C.No.198/2002 on the files of the Additional Sessions Judge Fast Track (Adhoc) Court II, Thiruvananthapuram. The conviction is under Section 55 (a) of the Abkari Act . The sentence is to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for three months.

2. The facts of the case is as follows :

On 12.3.1998 at about 8.30 p.m., the accused was found in possession of 30 bottles of Indian Made Foreign Liquor having a total quantity of 9.3 litres at a place near to the garage of KSRTC at Thampanoor. The Sub Inspector of Police detected the crime and registered the crime for an offence under Section 55 (a) of the Abkari Crl.Appeal No.1552/2004 2 Act. After filing charge, prosecution altogether examined three witnesses and Exts.P 1 to P4 were marked. On the side of the defence, Exts.D1 and D2 were marked. MO1 to 3 were also marked. MO2 and MO3 series are bottles. After appreciating the evidence, the trial court convicted the accused as stated above and sentenced. Aggrieved by the conviction and sentence, this appeal is preferred.

3. It is submitted before me that as per prosecution case, contraband contained in a bag. But there is no consistent stand for the prosecution. Once it is called as a cover. Then the stand changed as bag. The learned counsel submitted before me that in this case it can be seen that no forwarding note/forwarding letter is marked. It is also the submission that detecting officer himself investigated the crime. No arrest memo or any other material produced to give assurance regarding the arrest especially when the detecting officer himself is the investigating officer i.e. when the investigating officer is none other than the detecting officer, he will have an inclination to obtain conviction for the offence allegedly detected by him. Then he will not Crl.Appeal No.1552/2004 3 bring out the actual situation before the court. In this case there is no arrest memo or inspection memo. Finally, the point raised before me is that in 1998 there was no total prohibition in our State. It is the submission that when there is no total prohibition in the State and when the positive case of the prosecution is that the contraband is manufactured by the licenced manufacturer showing the batch number and other details on the label and if the said article was not one sold in the State, the said aspect could have been very easily proved by the prosecution by producing documents from the authorised vendors. When the prosecution got no specific material evidence to show that this is not legally imported from outside Kerala or that it is not the article sold from the licenced shops, then the submission of the learned counsel is that only charge for violation of Indian Foreign Liquor Rules will lie.

4. The learned Public Prosecutor submitted before me that here is a case where 30 bottles were found in the possession of the accused. The seizure is proved. When the seizure and the possession is Crl.Appeal No.1552/2004 4 proved, the trial court rightly invoked Section 64 of the Abkari Act and came to a conclusion that the accused committed the offence.

5. I have perused the evidence tendered by the detecting officer as well as other witnesses. After perusal of the evidences, there is nothing to disbelieve the evidence tendered by the prosecution. At the same time, it is a fact that at that point of time there was no total prohibition of liquor. It is correct to come to a conclusion that when possession is proved, the burden is upon the accused to rebut the same.

In this case no material produced. Thus the conviction is upheld. 6. Considering the fact that there was no total prohibition at that point of time and further keeping in mind the quantity of the foreign liquor involved and also keeping in mind that the arrest memo or inspection memo is not produced before the c