Possession of liquor exceeding permitted quantity established a violation under Section 63 of the Abkari Act, barring charges under Section 55(a) without proof of illegal import.

O R D E R

The Excise Inspector, Koyilandy Range, prosecuted the revision petitioner before the Judicial Magistrate of First Class, Payyoli, accusing offence under Section 55 (a) of the Abkari Act with an allegation that at 9.45 a.m on 4.8.1996, the patrol party attached to the office found the revision petitioner walking along a canal bund with MO2 plastic bag containing 14 bottles, each containing 375 mls, of Indian made foreign liquor, namely Bejoys Brandy. PW1, another Excise Inspector, along with PW4, the Preventive Inspector, who were in the patrol party intercepted the revision petitioner. They seized the contraband after preparing Ext.P1 seizure mahazer. The revision petitioner was arrested. One of the bottles was taken as sample and it was sealed then and there. The revision petitioner and the material objects were produced before PW5, who registered the case for which Ext.P3 occurrence report was prepared. PW5 took over the investigation. The sample bottles : 2:

were forwarded to the chemical examiner and obtained Ext.P5 certificate wherein it is certified that the sample contained

42.17% of ethyl alcohol by volume.

2. Before the trial court, the revision petitioner pleaded not guilty. Therefore he was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exts.P1 to P6, MOs 1 and 2 were marked. MO1 series are the remaining 13 bottles of Bejoys Brandy after forwarding one bottle for chemical examination. The revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He took a plea of total innocence. No defence evidence was let in. On appraisal of the evidence, the learned Magistrate arrived at a finding of guilty. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for three months and a fine of Rs.25,000/- with a default sentence of simple imprisonment for a further period of three months.

3. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.162/1999 before the Sessions Judge, Kozhikode. The Additional Sessions Judge, to whom the appeal was made over, by the impugned judgment dated 22.3.2002, : 3:

while confirming the conviction and 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 Smt. Rekha C. Nair, the learned counsel appearing for the revision petitioner and Smt. Sareena George, the learned Government Pleader.

5. The learned counsel for the revision petitioner confined her argument that only offence under Section 63 of the Abkari Act is made out and no offence under Section 55 (a) of the Abkari Act is made out with a plea that there is nothing on record to show that the petitioner had been importing or transporting any foreign liquor in contravention of any of the provisions of the Abkari Act or Rules or Order made thereunder. Whereas, he was possessing liquor exceeding the quantity permitted by SRO 89/69 (G.O.(P) No.82/69 RD dated 19.2.69) whereby possession of Indian made foreign liquor upto 4.5 litres is permitted. The quantity seized from the revision petitioner is 5.250 litres of Indian made foreign liquor. Therefore, according to the learned counsel, only an offence under Section 63 alone is made out.

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6. Prosecution was launched as if the liquor bottles seized were imported from Mahe without paying the duty. Going by the impugned judgments, I find that neither PW1, the detecting Officer, nor the investigating officer had conducted any investigation as to whether the contraband seized was imported from Mahe or whether it was acquired/purchased by the revision petitioner from a licensed outlet within the State. In the absence of such investigation or report or evidence regarding import from Mahe, I find merit in the argument advanced by the learned counsel for the petitioner. Therefore, I find that no offence under Section 55(a) of the Abkari Act is established, but only an offence under Se