Possession of Indian Made Foreign Liquor is permissible within certain limits, and prosecution must prove illegal origin for conviction under the Abkari Act.

O R D E R

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Revision petitioner is the accused in C.C.No.73/97 on the file of the Judicial Magistrate of the First Class, Nadapuram. He was prosecuted by the Excise Inspector, Nadapuram Excise Range, who was examined as PW2, accusing offence under Section 55 (a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. It was alleged that, on 22.1.1997, while moving on patrol duty, PW2 got information that foreign liquor was being transported from Pondichery to Kerala. He made preparation for search of the vehicles passing through. At 8.25a.m., at Perode - Parakadavu junction, he stopped the stage carriage bus bearing Reg. No.KL-13/9777 and made a thorough search. The revision petitioner was found sitting on the rear seat with a packet in his hand. On inspection it was found that the packet contained three bottles, each containing 375mls, and 6 bottles, each containing 180mls, of Gemini Brandy. He tested the nature of the liquid by smell and taste and satisfied that it was Indian Made Foreign Liquor (IMFL) being transported from Pallur. He arrested the revision petitioner and seized the packet with the liquor bottles. A mahazar, which was marked as Ext.P1 was prepared. PWs 3 and 4, the driver and conductor of the bus, are attestors to Ext.P1. He took samples from the bottles. Returning to the office, he registered a case for which Ext.P3 occurrence report was prepared. The samples taken were sent for analysis through court and obtained Ext.P4 certificate wherein, it is certified that the samples contained 43% and 42.78% by volume of ethyl alcohol. He completed the investigation and filed the complaint before the trial court.

2. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 4 were examined. Exts.P1 to P4 and MO1 series were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence and advanced a plea of innocence. No defence evidence was let in.

The learned Magistrate, on appraisal of the evidence, arrived at a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months and a fine of Rs.25,000/- with a default sentence of simple imprisonment for a further period of two months.

3. Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.A.No.67/2000 before the Sessions Judge, Kozhikode. The Additional Sessions Judge, Vadakara, to whom the appeal was made over, by the impugned judgment dated 13.12.2002, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred.

4. I have heard Sri.Arun Mathew Vadakan, the learned counsel appearing for the revision petitioner and Smt.Sareena George, the learned Government Pleader. The learned counsel for the revision petitioner took me through the judgment impugned as well as the evidence on record.

5. In support of the seizure, PW1, the Excise Guard and PW2, the Excise Inspector, had given evidence. PWs 3 and 4, who are attestors, though turned hostile, admitted their signatures in Ext.P1. PW2 would depose that the liquor seized was transported from Pallur. But there is no whisper in his evidence that Pallur is beyond the State of Kerala or within Mahe. Critically going through the evidence of PWs 1 and 2, I find nothing to conclude that PW2 had made any investigation as to whether the liquor seized were transported/imported from Mahe or not. No investigation was also made as to whether the revision petitioner acquired the same from a lawful outlet in the State or not. It is pertinent to note that the prosecution has no case that liquor seized was illicitly manufactured by the revision petitioner or that the petitioner had any liquor business or that the