Judgment : The appellant was prosecuted by the Sub Inspector of Police, Vythiri for an offence punishable under Section 55(a) of the Abkari Act. 2. The case of the prosecution as unravelled through the oral and documentary evidence is the following:- On 15-11-1997 at about 8 a.m. the appellant was found in possession of 6 litres of Indian Made Foreign Liquor (IMFL for short) by name “Western Doctors Brandy” consisting of 3 bottles each of 750 ml. capacity and 10 bottles each of 375 ml. capacity in MO4 bag carried by him in the varandha of a shop at the Pozhuthana – Vythiri junction. The detection of the appellant was by the Circle Inspector of Police, Vythiri during patrol duty at 8. a.m. The appellant was arrested and two samples of 180 ml. each were taken from one of the 10 bottles of 375 ml. capacity. The sample bottles were sealed and packed and seized along with the rest of the bottles under Ext.P2 seizure mahazar prepared by PW5 from the spot. The accused was arrested and taken along with the contraband liquor and seizure documents to the Vythiri Police Station. After reaching the Police Station, PW5 gave Ext.P3 First Information Report on the basis of which the above case was registered as Crime No. 138 of 1997 of Vythiri Police Station. The properties including the sealed sample bottles were produced before the Chief Judicial Magistrate, Kalpetta on 19-11-1997 and were received in Court as P.R.-313/97. During the course of investigation, Ext.P4 forwarding note was submitted requesting that the sample bottles be forwarded to the Chemical Examiner, Kozhikode for analysis. The said request was complied with by the Magistrate and Ext.P5 is the Chemical Analysis Report as per which the sample bottles contained 42.37% and 42.20% by volume of ethyl alcohol. PW1 Moideenkutty is an attestor to Ext.P1 Scene Mahazar. PWs 2 and 3 are independent witnesses to the search and seizure. They were also attestors to Ext.P2 Seizure Mahazar. Except admitting their signatures in Ext.P2, both of them turned unfriendly to the prosecution. PW4 was the A.S.1 of Vythiri who accompanied the detecting Officer on 15.11.1997. He supported the prosecution. MO1 series are the three bottles each of 750 ml. capacity and MO2 series are the remaining 9 bottles each of 375 ml. after sampling. MO3 is the 10th bottle of 375 ml. PW4 was the A.S.1 of Vythiri who accompanied the detecting Officer on 15.11.1997. He supported the prosecution. MO1 series are the three bottles each of 750 ml. capacity and MO2 series are the remaining 9 bottles each of 375 ml. after sampling. MO3 is the 10th bottle of 375 ml. capacity containing the balance quantity of liquor. It was from this bottle that PW5 took the two samples. MO4 is the bag in which all the 13 bottles were kept by the accused. Ext.P5 report of chemical analysis shows that two sealed bottles with the seals in tact were received on 25.11.1997 by the Chemical Examiner, Kozhikode along with the covering letter dated 25.11.1997 of the Chief Judicial Magistrate, Kalpetta dispatched through Police Constable No. 567 and that after analysis the sample bottles were found to contain 42.37% and 42.20% by volume of ethyl alcohol. 3. The learned counsel appearing the appellant placing reliance upon the decision in Krishnankutty v. State of Kerala – 2005(3) KLT 568, contended that since the two samples were taken only from one of the 10 bottles, and there were three other bottles of different capacity, it cannot be said that all the 13 bottles contained IMFL. As per SRO 127/1999 issued under G.O.(P) No. 22/99/TD dated 05.02.1999 as amended by SRO 725/03 issued under G.O. (P) 127/03/TD dated 02.08.2002, the maximum quantity of IMFL which a person can possess under Section 13 of the Abkari Act is 3 litres. When the bottle from which the two samples each of 180 ml. were drawn has a total capacity of only 375 ml. and the prosecution has not been able to show that the rest of the bottles contained IMFL, it should be presumed that the appellant was carrying only 375 ml. of IMFL. It is well within the permissible quantity as per the orders issued by the Government under Section 13 of the Abkari Act. 4. I am afraid that I cannot agree with the above submissions. All the 13 bottles seized in this case were bearing the label “Western Doctors Brandy.’ Three of the bottles were having a capacity of 750 ml. and the remaining 10 bottles were each having a capacity of 750 ml. and the remaining 10 bottles were each having a capacity of 375 ml. It is true that the two samples were drawn only from one of the 10 bottles. and the remaining 10 bottles were each having a capacity of 750 ml. and the remaining 10 bottles were each having a capacity of 375 ml. It is true that the two samples were drawn only from one of the 10 bottles. But when similarly labeled and sealed bottles purported to contain the same type of article are seized, the law does not require that samples should be drawn from each and every bottle. It will be sufficient if sample is drawn from one or certain number of bottles selected at random and sent for chemical examination. The decision reported in 2005 (3) KLT 568 has been explained by a subsequent Division Bench in Chandran V. State of Kerala – (2008 (2) KLT 513). Hence the prosecution has succeeded in proving that on 15.11.1997, at about 8 a.m., the appellant/accused was found in possession of 6 litres of IMFL in 13 bottles on the varandha of a shop at the Pozhuthana Vythiri junction and attracting Section 55 (a) of the Abkari Act. When once possession of IMFL in excess of 3 litres (which is the maximum permissible quantity that a person can possess or transport as per orders issued by the Government under Section 10 and 13 of the Abkari Act) is proved by the prosecution, then, unless the accused satisfactorily accounts for his possession of the IMFL, the Court can, under Section 64 of the Act, presume that the accused committed an offence punishable under Section 55 of the Act. 5. Section 55 of the Abkari Act reads as follows:- “55. 5. Section 55 of the Abkari Act reads as follows:- “55. For illegal import etc:- Whoever in contravention of this Act or of any rule or order made under this Act (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or (b) manufactures liquor or any intoxicating drug: (c) (xxx) (d) taps or causes to be tapped any toddy-producing tree, or (e) draws or causes to be drawn toddy from any tree; or (f) constructs or works any distillery, brewery, winery or other manufactory in which liquor is manufactured; or (g) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or (h) bottles any liquor for purposes of sale; or (i) sells or stores for sale liquor or any intoxicating drug; shall be punishable (I) for any offence, other than an offence falling under clause (d) or clause (e) with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and (2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.” The words “liquor” and “intoxicating drug are defined under Section 3(10) and Section 3 (14) as following:- (10) Liquor:- “Liquor’ includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol; (14) “intoxicating drug” means any intoxicating substance other than Narcotic drug or a psychotropic substance regulated by the Narcotic Drugs Psychotropic Substances Act, 1995 (Central Act 61 of 1985) Which the Government may by notification declare to be an intoxicating drug; A careful scrutiny of the provision of the Abkari Act will clearly show that the various clauses under Sec. 55 get attracted if any of the activities such as “imports”, “exports”, transports”, transits”, “manufactures”, “taps or causes to be tapped”, “draws or causes to be drawn”, constructs or works any distillery etc”, “uses, keeps or has in his possession any materials etc.” “bottles, “sells” or “stores for sale” referred to therein is committed in contravention of the Act or Rules or any Order made under the Act. Each and every expression used in the various clauses of Section 55 have well defined connotation under the provisions of the Act. Take for instance, clause ‘a’ of Section 55 of the Act. The said clause indicates that whoever in contravention of the Act or any rule or order made under the Act imports, exports, transports, transits or possesses liquor or any intoxicating drug is stated to commit an offence under the Act. The expression “import” is defined under Section 3 (16) of the Act as follows:- “import” means to bring into the State. Likewise, the expression ‘export’ has been defined under Section 3(17) of the Act as follows:- “export” means to take out of the State. The expression ‘transport’ has been defined under Section 3 (18) of the Act as follows:- “Transport” means to move from one place to another within the State. The expression ‘transit’ has been defined under Section 3 (17A) of the Act as follows:- “Transit” means to move from one place in a State to another place in that State or to any other State through the territory of the State of Kerala. Section 6 of the Act contains the restriction on import of liquor or intoxicating drug. Section 6 reads as follows:- “6. Import of liquor or intoxicating drug:- (1) No liquor or intoxicating drug shall be imported unless the permission of the Government or any officer authorised by the Government in this behalf is obtained for the importation of such liquor or intoxicating drug and unless the duties, taxes, fees and such other sums as are due to the Government under this Act, in respect of such liquor or intoxicating drug, have been paid or a bond for such payment on its importation has been executed. (2) A permission granted by the government or such officer under sub-section (1) shall subject to such conditions and restrictions as any may be specified by the Government by notification in the Gazette”. Thus, if a person imports liquor or intoxicating drug without any permission from the Government or an authorised officer and without paying the duties, taxes, fees etc. to the Government, he is stated to import such liquor or intoxicating drug in contravention of Section 6 of the Act and such a person thus becomes liable for punishment under Section 55(a) of the Act. to the Government, he is stated to import such liquor or intoxicating drug in contravention of Section 6 of the Act and such a person thus becomes liable for punishment under Section 55(a) of the Act. Likewise, Sec. 7 is the provision imposing restrictions on export of liquor or intoxicating drug. Section 7 reads as follows:- “Export of Liquor or intoxicating drug:- (1) No liquor or intoxicating drug shall be exported unless is permitted by the Government or any officer authorised by the Government in this behalf and unless:- (a) the duties, taxes fees and such other sums as are due to the Government under this Act, in respect of such liquor or intoxicating drug, have been paid; or (b) a bond for such payment on its exportation or re-exportation has been executed. (2) A permission granted by the government or such officer under sub-section (1) shall be subject to such conditions and restrictions as may be specified by the government by notification in the Gazette”. Thus, if a person exports liquor or intoxicating drug in violation of the prohibition contained in Section 7 of the Act, he is stated to contravene the provisions of the Act and therefore becomes liable to be punished under Section 5 (a) of the Act. Similarly, “transportation” of liquor or intoxicating drug is prohibited under Section 10 except under certain conditions. Section 10 reads as follows: “10. Transporting of liquor or intoxicating drug:- No liquor or intoxicating drug, exceeding such quantity as the Government may, from time to time, prescribe by notification in the Gazette either generally for the whole State or for any local area, shall be transported except under a permit issued under the provisions of the next following section”. Therefore, if a person “transports” (i.e. moves from one place to another within the State) liquor in violation of Section 10, he becomes punishable under Section 55(a) of the Abkari Act. The provision governing the “transit” of liquor or intoxicating drug is contained in the Kerala Liquor Transit Rules, 1975. Rules 3 of the said rules prohibits the moving of liquor from one place in the State to another or to any other State through the territory of the State of Kerala except under a permit issued by the officer authorised in that behalf. Rules 3 of the said rules prohibits the moving of liquor from one place in the State to another or to any other State through the territory of the State of Kerala except under a permit issued by the officer authorised in that behalf. Therefore, if a person “transits” liquor or intoxicating drug in violation of Rule 3 of the Kerala Liquor Transit Rules, 1975, such person commits an offence punishable under Section 55(a) of the Abkari Act. The possession of arrack is prohibited under Section 8 (1) of the Act which reads as follows:- “8. (1) Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc., of arrack:- No person shall manufacture, import, export, transport, without permit transit, possess, store, distribute, bottle or sell arrack in any form.” The possession of other liquor or intoxicating drug is prohibited under Section 13 of the Act under certain circumstances. Section 13 of the Act reads as follows:- 13. Possession of liquor or intoxicating drugs in excess of the quantity prescribed by the Government prohibited:- No person not being a licensed manufacturer or vendor or liquor or intoxicating drugs shall have in his possession any quantity of liquor or intoxicating drugs in excess of such quantities as the Government may from time to time, prescribe by notification, either generally or specially with regard to persons, places or time, in respect of any specified description or kind of liquor or intoxicating drug, unless under a license granted by the Commissioner in that behalf:- Provided that- (1) No fee to be charged for license for possession for private consumption:- No fee shall be changed for any such license granted for the possession of such liquor or intoxicating drugs for bona-fide private consumption or use. (2) Proviso as regards foreign liquor:- Nothing in this section extends to any foreign liquor other than denatured spirit in the possession of any warehouse man as such”. Therefore, if a person possesses arrack in contravention of Section 8(1) or other liquor or intoxicating drug in contravention of Section 13 of the Act, he becomes punishable under Section 55(a) of the Act. Therefore, if a person possesses arrack in contravention of Section 8(1) or other liquor or intoxicating drug in contravention of Section 13 of the Act, he becomes punishable under Section 55(a) of the Act. As per notification published as S.R.O. No. 89/1969 issued under G.O. (P) 82/69/RD dated 19-2-1969 the Government of Kerala notified 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 license, as the case may be, issued by the competent authority under the said Act. Kind of Liquor Quantity (i) (ii) 1 Toddy 2½ litres 2) Arrack (country spirit) 750 Mili litres 3) Cocobrandy 750 Milli litres 4) 3) Foreign Liquors and Indian made foreign liquors other than plaint Rectified spirit 4½ 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 license, as the case may be, shall not exceed:- (a) 4½ Litres in cases where foreign liquor or Indian made foreign Liquor other than plain rectified sprit is one of the kinds of liquor transported or possessed, subject of the restrictions in (b) and (c) below:- (b) Subject to the restriction in (c) below 2½ 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 mlli 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”. Subsequently as per notification issued as S.R.O. No. 127/99 in G.O. (P) 22/99/TD dated 5-2-1999 the Government of Kerala issued another notification as follows in supersession of all the previous notifications. (c) 750 mlli 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”. Subsequently as per notification issued as S.R.O. No. 127/99 in G.O. (P) 22/99/TD dated 5-2-1999 the Government of Kerala issued another notification as follows in supersession of all the previous notifications. S.R.O. No. 127/99:- In exercise of the powers conferred by sections 10 and 13 of the Abkari Act, the 1077 and in supersession of all previous notifications on the subject issued under the said sections, the Government of Kerala hereby notify that no person, not being a licensed manufacturer or vendor of liquor, shall have in his possession or shall transport any liquor specified in column (1) of the table below exceeding the quantity shown against it in column (2) thereof, except under a permit or license, as the case may be, issued by the competent authority under the said Act. (G.O. (P) No. 22/99TD dt. 5-2-1999, in K.G.Ext. No. 250 dt. 5-2-1999. S-No. Kind of liquor-1 Quanity-2 Toddy 2-5 litres 2 Indian made foreign liquor 1-5 litres 3 Beer 4-5 litres 4 Wine 4-5 litres 5 Foreign Made Foreign Liquor 4-5 litres 6 Coco brandy 1-5 litres Provided that no such person shall have in his possession or transport more than one kind of liquor” Subsequently as per notification issued as S.R.O.No. 725/03 in G.O. (P) No. 127/03/TD dated 2-8-2002 the limit of IMFL was enhanced to 3 litres and the limit of beer was enhanced to 7.8 litres and the limit of wine was enhanced to 7.8 litres by amending S.R.O.No. 127/99. The proviso to S.R.O. 127/99 was deleted and a new proviso was added as per S.R.O.No. 963/02 in G.O.(P)No. 173/02/TD dated 30-11-2202. The new proviso reads as follows:- “Provided further that the Ex-servicemen/Defence personal may posses their quota of liquor, subject to production of their identity cards and the bills regarding the issue of the liquor or necessary certificates to that effect from the canteen officer who issued the liquor, for verification”. Thus, with effect from the date of publication of S.R.O. 725/03 the maximum limit of IMFL, beer and wine which a person can possess or transport is 3 litres, 7.8 litres and 7.8 litres respectively. 6. Thus, with effect from the date of publication of S.R.O. 725/03 the maximum limit of IMFL, beer and wine which a person can possess or transport is 3 litres, 7.8 litres and 7.8 litres respectively. 6. The privilege of sale of IMFL to public in sealed bottles is granted exclusively to the Kerala State Beverages (Manufacturing and Marketing) Corporation Limited, Kerala State Civil Supplies Corporation Limited and the Kerala State Co-operative Consumers’ Federation Limited by virtue of Rule 13 of Foreign Liquor Rules. No person, in view of the limit prescribed under Section 10 and 13 of the Act, can purchase, at a time, from any of the aforementioned Corporations or Federation or possess or transport IMFL, beer wine, foreign made foreign liquor, coco brandy etc. in excess of the limit so prescribed. Even in a case where a person purchases 2 litres of IMFL from the Beverages Corporation and then sells it or stores it for sale, he will be committing an offence punishable under Section 55(i) of the Act, although the quantity of IMFL is within permissible limits. Similarly, where the IMFL possessed or transported by a person is within 3 litres, but it is not shown to have been purchased from the 2 corporation or the federation referred to earlier, it can be presumed by calling into aid Section 64 of the Act that the IMFL was either imposed illegally or manufactured illegally thereby attracting the offences punishable under Section 55(a) or Section 55(b). In the case of arrack, of course, now after the amendment of Section 8 of the Act, a person manufacturing, importing, exporting, transiting without permit, possessing, storing, distributing, bottling or selling arrack in any form is liable to be punished under Section 8(2) of the Act which is a special provision pertaining to arrack. Such a person may also fall under Section 55 (a) of the Act. But a general provision like Sec. 55(a) of the Act will have to yield to a special provision like Sec.8 which deals exclusively with arrack which has been banned in this State with effect from 3-6-1997. Thus, after amending Act 10 of 1996, Section 55 only deals with liquor and intoxicating drug other than arrack. 7. Now coming to clause ‘b’ of Section 55, Section 12 of the Act prohibits manufacture of liquor or intoxicating drug except under the provisions of the Act. Thus, after amending Act 10 of 1996, Section 55 only deals with liquor and intoxicating drug other than arrack. 7. Now coming to clause ‘b’ of Section 55, Section 12 of the Act prohibits manufacture of liquor or intoxicating drug except under the provisions of the Act. Section 12(1) reads as follows:- 12.(1) Manufacture of liquor or intoxicating drug prohibited except under the provisions of this Act:- No liquor or intoxicating drug shall be manufactured no toddy producing tree shall be tapped; no toddy shall be drawn from any tree; no distillery, brewery, winery or other manufactory in which liquor is manufactured shall be constructed or worked; no liquor shall be bottled for sale; and no person shall use, keep or have in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any liquor other than toddy or any intoxicating drug; except under the authority and subject to the terms and conditions of a licence granted by the Commissioner in that behalf, or under the provisions of Section 21: Provided that the Government may, by notification, direct that in any local area it shall not be necessary to take out a licence for the manufacture of liquor for bona-fide home consumption. Licences granted under this section shall extend to and cover servants and other persons employed by the licensees and acting on their behalf. Therefore, if any person manufactures liquor or intoxicating drug in violation of Section 12 of the Act, he commits an offence punishable under Clause ‘b’ of Section 55 of the Act. The prohibition for the purpose of clauses ‘d’, ‘e’, ‘f’, ‘g’ and ‘h’ of Section 55 is also contained in Sec. 12 of the Act. Likewise, the prohibition for the purpose of clause ‘i’ of Section 55 is to be found in Section 15 of the Act which reads as follows: “Sale of liquor or intoxicating drug without licence prohibited Power to exempt toddy:-No liquor or intoxicating drug shall be sold without a licence from the Commissioner, provided that a person having the right to the toddy drawn from any tree may sell the same without a licence to person licensed to manufacture or sell toddy under this Act. Provided also that the Government may, by notification declare that any or all of the provisions of this Act, shall not apply in any local area to trees tapped, or to toddy drawn under such conditions as the Government may prescribed. Nothing in this Section applies to the sale of any foreign liquor legally procured by any person for his private use and sold by him or by auction on his behalf or on behalf of his representatives in interest upon his quitting a station, or after his decease. 8. As for Section 58 of the Act any person who has in his possession any quantity of liquor or intoxicating drug which attracts an offence punishable under Sec.55 of the Act and who keeps the same in his possession with the knowledge that such liquor or intoxicating drug has been unlawfully imported, transported, manufactured or knowing that the duty, tax or rental payable under the Act has not been paid, is punishable under Sec.58 of the Act. It is the knowledge of the person with regard to the unlawful importation, transportation, manufacture and evasion of tax or rental which makes him liable for punishment under Sec. 58 of the Act. 9. On the facts proved in this case, the offence which is made out against the appellant is one punishable under Section 55(a) of the Act for having found in possession of six litres of IMFL which is in excess of the permissible quantity of three litres as per the orders issued by the Government in exercise of the power under Sections 10 and 13 of the Act. The conviction was, therefore, rightly entered against the appellant. 10. What now remains to be considered is the legality and extent of the sentence imposed on the appellant. The offence is punishable with imprisonment up to 10 years and with fine which shall not be less than rupees one lakh. The fine imposed by the court below is the mandatory minimum. As for the imprisonment awarded by the court below, the same is only simple imprisonment for one year which, in the facts and circumstances of the case, do not call for any interference at the hands of this Court. 11. The result of the foregoing discussion is that this appeal is without any merit and is accordingly dismissed confirming the conviction entered and the sentence passed against the appellant. 11. The result of the foregoing discussion is that this appeal is without any merit and is accordingly dismissed confirming the conviction entered and the sentence passed against the appellant. The appellant shall be entitled to set off under Section 428 Cr.P.C. Dated this the 16th day of September, 2009.