Possession of liquor within legal limits under the Abkari Act does not constitute a violation unless there is evidence of illegal sale or intent.

O R D E R

Revision petitioner is the accused in Sessions Case No.140/1998 on the file of the Assistant Sessions Judge, Hosdrug. He was prosecuted by the Sub Inspector of Police, Chandera, accusing offence under Section 55 (a) of the Abkari Act , with an allegation that on 30/12/1997, in front of Shine Engineering Works the revision petitioner was found carrying four bottles, each containing 750 mls, of Indian Made Foreign Liquor in a plastic bag.

2. The revision petitioner pleaded not guilty.

Therefore he was sent for trial. Basing upon the evidence of PWs 1 to 3; Exhibits P1 to P6 and also MOs 1 and 2, the trial court arrived at a finding of guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.1,00,000/-.

3. Aggrieved by the above conviction and sentence, he preferred Crl. A.79/1999 before the Sessions Judge, Kasaragod. The Additional Sessions Judge, Kasaragod, by the impugned judgment dated 31/1/2003, while confirming the conviction and the sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition is preferred.

4. I have heard Adv. Smt. Sudhamani, the learned counsel appearing for the revision petitioner and Smt. Sareena George, the learned Government Pleader.

5. The evidence of PW1, the Sub Inspector of Police would show that the revision petitioner was apprehended and the liquor was seized on the allegation that at that time the permissible quantity that a person could occupy was only 1 ½ litres. The learned Government Pleader would submit that as on the date of the offence, the field was governed by SRO No.89/69 which reads as follows:

"S.R.O.No.89/69.- Under section 10 and 13 of the Abkari Act , I of 1077, and in supersession of Notification S.R.O.No.36/68 issued under G.O. (MS) 59/68/RD date 24-1-1968, the Government of Kerala hereby notify that no Liquor of the kind specified in column (i) of the table below exceeding the quantity prescribed against it in column (ii) thereof shall be transported or possessed except under a permit or a licence, as the case may be, issued by the competent authority under the said Act.

TABLE Kind of Liquor Quantity (i) (ii)

1. Toddy 2 ½ Litres

2. Arrack (country spirit) 750 Milli Litres 3. Cocobrandy 750 Milli Litres

4. Foreign Liquors and Indian made foreign liquors other than plain Rectified spirit 4 ½ Litres

5. Rectified spirit 250 Milli Litres Provided that, subject to the above maximum quantity for each individual item, the aggregate quantity of more than one kind of liquor which may be transported or possessed at a time without a permit or licence, as the case may be, shall not exceed:-

(a) 4 ½ Litres in cases where foreign liquor or Indian made foreign Liquor other than plain rectified spirit is one of the kinds of liquor transported or possessed, subject to the restrictions in (b) and (c) below;-

(b) Subject to the restriction in (c) below

21/2 litres in cases where the kinds of liquor transported or possessed are Toddy and any one or more of the following kinds of liquors namely, Arrack, Cocobrandy and Rectified spirit.

(c) 750 milli litres in cases where the Kinds of liquor transported or possessed are Arrack, Cocobrandy and Rectified Spirit or any two of these kinds of liquors.

(G.O.(P) 82/69/RD dt. 19-2-69)"

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According to the learned counsel, the permitted quantity of the Indian Made Foreign Liquor that a person could possess as on the date of occurrence was 4 ½ litres. In the light of the above Govt. Order, I find that the revision petitioner was possessing only permitted quantity. There is no case for PW1 that the revision petitioner was engaged in sale of the Indian Made Foreign Liquor. That being the evidence on record, the revision petitioner was possessing the Indian Made Foreign Liquid within the permissible quantity and no offence is made out. The revision petitioner is entitled to an order of acquittal.

In the result, this revi