JUDGMENT : Mrs. K. Hema, J. On trial for offences under Sections 55(a), 58 and 8 of Kerala Abkari Act, (hereinafter referred to as "Act", for short), appellant he was convicted by Additional Sessions Court for offences under Section 55(a) and Section 58 of Abkari Act. However, the Court below held, 'Section 8 of Act has no application to the facts of this case'. 2. The appellant was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo imprisonment for three months under Section 55(a) of the Act. He was also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,00,000/- for offence under Section 58 of the Act and in default, to undergo imprisonment for three months. 3. According to prosecution, 900 litres of spirit were seized from house no. VIII/318 and also as seen buried in the property which is situated on the southern side of the said house. It also belonged to appellant. On 14/07/1997 at about 6 p.m, while PW 1, Excise Circle Inspector was on patrol duty, he received information that appellant was in possession of arrack in his house and he was dealing with the same. After preparing Ext. P1, search memo PW 1, PW 2 and Excise party proceeded to the spot. 4. When they reached house no. VIII/318, appellant was present there. On search, 200 litres of spirit were found kept in barrels having 100 litres capacity in one of the rooms of the house. On further search, three more barrels each having 200 litres of capacity were found buried in the property situated on the southern side of the house. There were also other barrels of spirit. Altogether, there were 900 litres of spirit in possession of appellant. 5. The articles were seized under Ext. P2 mahazar. The search list is Ext. P3. Samples were drawn from the 7 barrels and they were also seized. The accused did not offer any explanation for the contraband article found in his house and premises. Hence, he was arrested from the spot and all the contraband articles were taken to Excise Range Office. A case was registered. The Occurrence Report is Ext. P4. After investigation, a report was laid against appellant. 6. Prosecution examined PWs 1 to PW 11 and marked Exts. Hence, he was arrested from the spot and all the contraband articles were taken to Excise Range Office. A case was registered. The Occurrence Report is Ext. P4. After investigation, a report was laid against appellant. 6. Prosecution examined PWs 1 to PW 11 and marked Exts. P1 to P17. Exts. D1 to D4 series were marked on the side of accused. While questioned under section 313 of the Code of Criminal Procedure Code (‘the Code’, for short), accused stated that house no. VIII/318 did not belong to him and he was not residing therein. According to him, on 14/07/1997, actually, his father-in-law Sri. Ouseph Thomman was arrested and was taken to Excise Range office and he was also produced in Court. (His father-in-law expired later). On coming to know of his arrest, accused came from Rajakkad where he resides, to make enquiries at the Excise Office. He was then, arrested and now, he is the sole accused. 7. The Trial Court, on analysis of evidence in detail entered a finding that accused was in "absolute possession" of building no. 318/A/8 and that he was found in "conscious possession" of contraband articles seized by the Excise Officials on 14/07/1997 at 6.30 p.m., and convicted appellant for possession of the contraband articles. The conviction is challenged in this appeal. 8. Heard both sides. Perused the records. Points for consideration in this appeal are: 1. Whether appellant was in possession of 900 litres of spirit, as alleged? 2. Whether conviction and sentence passed against appellant are sustainable? 9. Points 1 and 2: Learned counsel for appellant strongly argued that appellants was not in possession of the house from where articles were seized and he was also not present in the said house, at the time of seizure. It was also submitted that as per the documents produced by prosecution itself, his father-in-law and mother-in-law were residing in the house and they were in possession of the same. Therefore, 'exclusive possession of the property or the building cannot be attributed to appellant and he cannot be made liable for possession of the contraband articles seized from the place of occurrence, it is argued. 10. Learned Public Prosecutor argued that there is ample evidence, both documentary and oral, to establish that appellant was in possession of the building and the premises and he cannot be exonerated from criminal liability. A registered sale deed, Ext. 10. Learned Public Prosecutor argued that there is ample evidence, both documentary and oral, to establish that appellant was in possession of the building and the premises and he cannot be exonerated from criminal liability. A registered sale deed, Ext. P9 was produced to prove that property in question was sold in favour of appellant by his father-in-law, as early as on 27/08/1992 and hence, he was in possession of the building since such date. Possession certificate Ext. P12 and Ext. P15 voters list also show that appellant was in possession of the property and he was residing in the building. 11. On hearing both sides and on going through records in this case, I find that evidence reveals that the building in question and appurtenant land were sold to appellant, by his father-in-law, as per Ext. P9 which is a registered sale deed, Ext. P9 to discharge; debt which he owed to appellant. The sale and ownership as per Ext. P9 are not dispute. There is nothing on record to infer that Ext. P9 was concocted for the sole purpose of prosecuting appellant. Though learned counsel for appellant argued that Ext. P9 is a sham document etc., nothing is brought out in evidence to support this contention. 12. Ext. P9 shows that date of execution of sale deed is 27/08/1992 and seizure was effected much thereafter, on 14/07/1997. From a reading of the evidence as a whole along with various documents produced, it can easily be inferred that the property was assigned to appellant and he was remitting the land tax since 1992-1993 till 2002. On going through the impugned judgment, evidence both oral and documentary, I find no reason to interfere with lower Court’s finding that appellant was in possession of the house and the property from where 900 litres of spirit were seized. 13. The mere fact that names of his father-in-law and mother-in-law are shown in certain documents will not be sufficient to hold that appellant was not in possession of the house or the property. The appellant had opportunity to explain under what circumstance and how contraband articles happened to be in the house and property which belonged to him, as per Ext. P9. But, appellant has also no case that contraband articles belonged either to his father-in-law or mother-in-law or any of the other family members like his wife and children. 14. The appellant had opportunity to explain under what circumstance and how contraband articles happened to be in the house and property which belonged to him, as per Ext. P9. But, appellant has also no case that contraband articles belonged either to his father-in-law or mother-in-law or any of the other family members like his wife and children. 14. The appellant has no case that father-in-law is the actual person who had kept the articles in his property which was seized in this case, even though he stated that his father-in-law was arrested first and thereafter, he was excluded from array of accused etc. In such circumstances, the fact that other members were also residing in the house may not by itself be sufficient to exclude appellant from criminal liability. There is no reason to interfere in the finding that appellant was in possession of the house and the property from which the articles were seized. 15. The appellant was found guilty of offence under Section 58 of Abkari Act and he was convicted thereunder. Separate sentence was also awarded for offence under Sections I of Abkari Act. As per Section 58 of Abkari Act, possession of any quantity of liquor must be with the knowledge that it has been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid. As rightly argued by learned counsel for appellant, it is well settled that mere possession of liquor will not make a person liable for offence under Section 58 of Abkari Act. 16. So, prosecution has to prove that accused had the requisite knowledge as referred to in Section 58 of the Act to attract offence under the said provision. But, in this case, what is proved is mere possession of liquor and not requisite knowledge which is relevant under Section 58 of Abkari Act. Hence, conviction and sentence passed against appellant are not sustainable. 17. Another important argument advanced by learned counsel for appellant is that even if entire prosecution case is accepted, appellant cannot be convicted for offence under Section 55(a) of Abkari Act. Hence, conviction and sentence passed against appellant are not sustainable. 17. Another important argument advanced by learned counsel for appellant is that even if entire prosecution case is accepted, appellant cannot be convicted for offence under Section 55(a) of Abkari Act. It is argued that possession simpliciter of liquor is not an offence under Section 55(a) of Abkari Act, as held in the two decisions of the Division Bench of this Court in Surendran v. Excise Inspector, 2004 KHC 72 : 2004 (1) KLT 404 (DB)(hereinafter referred to as ‘Surendran’s case') and Mohanan v. State of Kerala, 2007 (1) KHC 752 : 2007 (1) KLT 845 (DB) : ILR 2007 (1) Ker. 687 : 2007 (1) KLJ 436, (hereinafter referred to as 'Mohanan’s case). 18. On going through the above decisions, it is clear that a person can be held guilty of offence under Section 55(a) of the Act, only if possession of liquor by him is in the course of import, export, transport or transit of the contraband article. But, prosecution itself has no case that "possession" of liquor by appellant was "in the course of transport, import, transit or export" and hence, possession simpliciter of 900 litres of spirit by appellant is not an offence under Section 55(a) of Act and the conviction is illegal, it is strongly argued. 19. Learned Public Prosecutor refuted above arguments and strenuously contended that even on a plain reading of Section 55(a) of the Act, it would be clear that each of the acts viz., "transport", "import", "export" and "possession" of liquor in contravention of the Act or any Rule or order made under the Act is an independent offence under Section 55(a) of the Act. It is also submitted that it is held by another Division Bench of this Court in Bindu v. Assistant Police Commissioner and Another, 2003 KHC 1160 : 2003 (3) KLT 583 : 2003 (2) KLJ 1010 , "any person who imports, exports, transports, transits or possess liquor or any intoxicating drug in contravention of the Act or any Rule or order made under the Act is guilty of the offence" under Section 55(a) of the Act. 20. It is also pointed out that it is not stated in the above decision that possession of liquor must be in the course of import, export or transport to attract offence under Section 155(a) of the Act. 20. It is also pointed out that it is not stated in the above decision that possession of liquor must be in the course of import, export or transport to attract offence under Section 155(a) of the Act. Mere possession of liquor ('spirit'), in contravention of the provisions of the Act or Rules thereunder is sufficient to make a person guilty of offence under Section 55(a) of the Act and it is not necessary to prove that such possession is in the course of "transport, import or export" etc., it is strenuously argued. 21. Learned Public Prosecutor also argued that appellant acted in violation of Rules 13 and 15 of Kerala Rectified Spirit Rules, 1972, by keeping in his house and premises, 900 litres of "spirit". It is also argued that appellant also violated Rule 6 of the Cochin Denatured Spirit and Methyl Alcohol Rules, 1965 under which, possession of denatured spirit is prohibited. Therefore, the act committed by the appellant squarely falls under Section 55(a) of the Act, it is argued. 22. According to learned Public Prosecutor, possession of "spirit", being in violation of provisions of Kerala Rectified Spirit Rules, 1972 and Cochin Denatured Spirit and Methyl Alcohol Rules, 1965, appellant is liable for offence under Section 55(a) of the Act, going by the dictum laid down in Bindu's case. Though possession of spirit, as such, is not specifically prohibited under any of the provisions of the Act, the above Rules prohibit possession of spirit. Hence, offence under Section 55(a) of the Act is clearly attracted against appellant, it is argued. 23. Learned Public Prosecutor also pointed that Bindu's case is not overruled but both the decisions cited by learned defence counsel are rendered subsequent to Bindu's case and in ignorance of the dictum laid down in Bindu’s case. None has brought Bindu's case to the notice of the two Division Benches which subsequently rendered Surendran and Mohanan and hence, latter decisions are perineurium. It is also pointed out that in Bindu’s case, the article involved is "spirit" which is the same as in this case whereas, in Surendran and Mohanan, the articles involved are "arrack" and "toddy" respectively. 24. Three decisions of this Court are placed before me which are all rendered by Division Benches of this Court and all those are on scope of offence under Section 55(a) of the Act. 24. Three decisions of this Court are placed before me which are all rendered by Division Benches of this Court and all those are on scope of offence under Section 55(a) of the Act. In Bindu it is held that possession of liquor in contravention of contravention of the Act or any Rule or order made under the Act is an offence under Section 55(a) of the Act whereas, as per Surendran and Mohanan, mere possession of liquor is not sufficient to constitute offence under Section 55(a). But, according to the said decisions, offence under Section 55(a) will be attracted only if possession is "in the course of transport, import or export". This is what is held in Bindu v. Assistant Police Commissioner and Another, 2003 KHC 1160 : 2003 (3) KLT 583 : 2003 (2) KLJ 1010 referring to Section 55(a): "any person who imports, exports, transports, transits or possess liquor or any intoxicating drug in contravention of the Act or any Rule or order made under the Act is guilty of the offence." 25. The dictum laid down in Bindu is consistent with the plain language of Section 55(a). So, if any one of the acts such as import, export, transport, transit or possession is committed by a person, in contravention of the Act or any Rule or Order made under the Act, he will be guilty of the offence under Section 55(a) of the Act. However, in Surendran v. Excise Inspector, 2004 KHC 72 : 2004 (1) KLT 404 (DB), (referring to conflicting views in three judgments of Single Benches in Rajeevan v. Excise Inspector, 1995 KHC 10: 1995 (1) KLT 38 , Purushan v. State of Kerala, 2002 KHC 492 : 2002 (2) KLT 661 : ILR 2002 (3) Ker. 315 : 2002 CriLJ 3523 and Meenakshi v. Excise Circle Inspector, 1995 KHC 134 : 1995 (1) KLT 738 : 1995(1) KLJ 573 : ILR 1995 (3) Ker. 183, a Division Bench of this Court held thus: "8. The conflict of judicial opinion exists in the context of the meaning of "possession'. In the cases of Rajeevan v. Excise Inspector, 1995 (1) KLT 38 and Purushan v. State of Kerala, 2002 (2) KLT 661 , the view taken appears to be that to be culpable the possession must be in the course of import, export, transport or transit. The conflict of judicial opinion exists in the context of the meaning of "possession'. In the cases of Rajeevan v. Excise Inspector, 1995 (1) KLT 38 and Purushan v. State of Kerala, 2002 (2) KLT 661 , the view taken appears to be that to be culpable the possession must be in the course of import, export, transport or transit. Simple possession is not enough to attract the rigour of Section 55(a)....... Thus, it appears that the case shall fall within the ambit of Section 55(a) only when a person is found to be in possession of liquor in the course of import, export, transport or transit of the goods...... In other words, we hold that the view as expressed in Rajeevan v. Excise Inspector and Purushan v. State of Kerala is correct." (emphasis supplied) 26. Another Division Bench followed Surendran and held in Mohanan v. State of Kerala, 2007 (1) KHC 752 : 2007 (1) KLT 845 (DB): ILR 2007 (1) Ker. 687 : 2007 (1) KLJ 436, that three other decisions viz., Karthikeyan v. State of Kerala, 2000 KHC 692 : 2000 (3) KLT 639 : 2000 (2) KLJ 649 : 2001 CriLJ 408, Balan v. State of Kerala, 2002 KHC 748 : 2002 (3) KLT 161 : 2002 (2) KLJ 196 : ILR 2002 (3) Ker. 438 and George Issac v. State of Kerala, 2004 KHC 121 : 2004 (1) KLT 752 : ILR 2004 (2) Ker. 218 which run contrary to the dictum in Surendran's case do not lay down correct law. The relevant extract is as follows: "10. Now, the matter is settled by the Division Bench decision of this Court in Surendran v. Excise Inspector, 2004 (1) KLT 404 wherein it was held that Section 55(a) of the Act deals with only illegal import, export or transport, transit etc. on such import or export. It was made clear that Section 55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing. The observations made in Karthikeyan v. State of Kerala, 2000 (3) KLT 639 , Balan v. State of Kerala, 2002 (3) KLT 161 and George Issac v. State of Kerala, 2004 (1) KLT 752 contrary to the decision made in Surendran's case (supra) are no more good law." 27. The observations made in Karthikeyan v. State of Kerala, 2000 (3) KLT 639 , Balan v. State of Kerala, 2002 (3) KLT 161 and George Issac v. State of Kerala, 2004 (1) KLT 752 contrary to the decision made in Surendran's case (supra) are no more good law." 27. On a close reading of the dictum laid down in Surendran and Mohanan, it is clear that there is some striking difference between the dictum laid down in those decisions themselves. While in Surendran it is held that "the case shall fall within the ambit of Section 55(a) only when a person is found to be in possession of liquor in the course of import, export, transport or transit, what is held in Mohanan is that "Section 55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing". 28. As per Mohanan, illegal import and transport also attract the offence under Section 55(a). The said offence is also made out when a person is in illegal possession of liquor while illegally "importing". A close reading of the above extract shows that it is not held therein that possession has to he in the course of "transport or export or transit" to attract an offence under Section 55(a) even though in Surendran, possession in the course of not only import but, in the course of export, transport or transit also will attract offence under Section 55(a). It can also be noted that illegal importing and also, transporting, independently, will be offences under Section 55(a) of the Act, as per Mohanan. 29. It is thus, pertinent to note that dictum laid down in Mohanan is the same as in Bindu to certain extent. As per both Bindu and Mohanan, offence under Section 55(a) will be attracted, if a person illegally imports or transports liquor, if each act of "import" and "transport" is committed as referred to in Section 55(a) of the Act, in contravention of law, such act will be an offence thereunder. Anyway, if Surendran and Mohanan are applied to this case, necessarily, possession of 900 litres of liquor by appellant which is, admittedly, not being "in the course of transport, import or export will not be an offence under Section 55(a) of the Act and hence, appellant will be entitled to be acquitted of the said offence. 30. Anyway, if Surendran and Mohanan are applied to this case, necessarily, possession of 900 litres of liquor by appellant which is, admittedly, not being "in the course of transport, import or export will not be an offence under Section 55(a) of the Act and hence, appellant will be entitled to be acquitted of the said offence. 30. But, if Bindu’s case is applied, possession simpliciter of rectified spirit is an offence under Section 55(a) of the Act, if it is proved that possession is in violation of any of the provisions of the Act or the Rules thereunder and it is not necessary for prosecution to prove that possession of liquor be in the course of transport, transit, export or import. Hence, conviction for offence under Section 55(a) of the Act will have to be upheld. 31. Any way, undoubtedly, there is a clear conflict in the legal position. So, I face another problem now. The position of law is well settled that a Single Bench has no power to refer a case to a Full Bench, since such power is expressly reserved to a Bench of two Judges, under Section 4 of the High Court Act (vide - Kannappan v. RTO, Ernakulaml, 1988 KHC 245 : 1988 (1) KLT 902 : ILR 1988 (2) Ker. 572). In the above decision, it is held thus: "a Single Judge has no power to refer a case to a Full Bench for, that power is expressly re served to a Bench of two Judges under Section 4 of the Act." (emphasis supplied) 32. The judicial discipline of this Court therefore, does not permit a Single Judge even to doubt the correctness of either of the views. A Single Judge cannot refer the matter to a Full Bench also. So, whether I personally agree or disagree with the dictum laid down in Bindu, Surendran or Mohanan, I shall not refer the matter to a Full Bench. I will stand by the discipline of this Court and I will not, and I shall not, at any cost, depart from the dictum in Kannappan’s case referred above. 33. So, I am constrained to decide this appeal, with the two conflicting views of two Division Benches of this Court before me. Needless to say, I cannot accept both the views and decide this appeal, since both are conflicting. 33. So, I am constrained to decide this appeal, with the two conflicting views of two Division Benches of this Court before me. Needless to say, I cannot accept both the views and decide this appeal, since both are conflicting. I am constrained to accept either of the two conflicting views and proceed to decide whether offence under Section 55(a) is made out in this case or not. This evidently, takes me to a stalemate. Still, I have to crack the problem and hence, let me proceed. 34. As a first step, I shall extract Section 55 of the Act. Section 55 of the excluding the portion which are not relevant for the disposal of this appeal, 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) xxxx xxxx xxxx to (c) xxxx xxxx xxxx (d) xxxx xxxx xxxx (e) xxxx xxxx xxxx (f) xxxx xxxx xxxx (g) xxxx xxxx xxxx (h) xxxx xxxx xxxx (i) xxxx xxxx xxxx shall be punishable (1) 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 which may extend to ten thousand rupees, or with both. Explanation.- xxxx xxxx xxxx’ 35. On a plain reading of Section 55(a) of the Act, it appears that if a person commits any of the acts such as, import, export, transport, transit or possess liquor as referred to in sub-section (a) of Section 55 of the Act, in contravention of the Act or any Rule or Order made under the Act it will be punishable. Sections 6 to 13 of the Act lay down that import export, transport, manufacture and possession of liquor are prohibited under the Act, as specifically referred to therein. Therefore, if a person contravenes provisions contained in Sections 6 to 13, he will be committing an illegal act which is prohibited under the Act. Each such illegal act is made punishable under Section 55 of the Abkari Act. 36. Therefore, if a person contravenes provisions contained in Sections 6 to 13, he will be committing an illegal act which is prohibited under the Act. Each such illegal act is made punishable under Section 55 of the Abkari Act. 36. As pointed out by learned Public Prosecutor, a reading of the Preambled of the Act also conveys the intention of legislature that each illegal act of possession, transportation and importation be made punishable under the Act. It is clear from Preamble of the Act itself that legislature intended to prohibit every act of import, export, transport, manufacture sale and possession etc., of liquor in violation of the relevant provisions. The Preamble of the Act reads as follows: "Whereas it is expedient to consolidate and amend law relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and intoxicating drug in the State of Kerala is enacted as.......". 37. Learned Public Prosecutor also submitted that Act 1 of 1077 (Abkari Act)was passed by His Highness the Mahararaja of Cochin on 05/08/1902 (Malayalam year 1077) which received the assent of the President on 29/07/1967. Later, it was applied to the whole of State. The expression ‘possesses’ was present in the Act right from 1077 (i.e., 902), ever since the Act came into force and it continued to be there in the Statute Book without any change, despite the amendment as per Act 10 of 1975, as pointed out by leaned Public Prosecutor. 38. But, the present confusion arose among members of legal fraternity since amendment was brought into Section 55(a) of the Act, as per an amendment of 1975 Act 10 of 1975), it is submitted. An impression was created that the expressions, transports, transits or possesses" were introduced only in 1975 and this got reflected in the interpretation of Section 55(a), it is submitted. He pointed out that the two words Transports or possesses" were present in the original Act itself and those two words are substituted by a set of three words, "transports, transits or possesses" whereby, the only word/act included additionally in Section 55(a) as per amendment in 1975 is "transit". 39. He pointed out that the two words Transports or possesses" were present in the original Act itself and those two words are substituted by a set of three words, "transports, transits or possesses" whereby, the only word/act included additionally in Section 55(a) as per amendment in 1975 is "transit". 39. As rightly submitted by learned Public Prosecutor, it is clear that even though the three words, "transports, transits or possesses" are shown as introduced as per an amendment by Act 10 of 1975, actually, the only change effected to Section 55(a) by virtue of Amendment Act of 1975 is in adding only a single word, "transit" to sub-clause (a) of 55 of the Act. The expression, "possesses" is therefore, not new to the Statute but, it was present in the original Act itself. It was not introduced for first time in 1975 in Section 55(a) fie Act. 40. So, it is also not correct to say that the words, "transports, transits or possesses" were subsequently "added" subsequently to the words "imports, exports", after the words Imports, exports" and for this reason, it has to be read in ejusdem generis etc., as held in Mohanan's case, it was vehemently argued by learned Public Prosecutor. But, these facts were brought to the notice of the two Division Benches in Surendran and Mohanan, it is Minted out. 41. In this context, submissions made by learned Public Prosecutor about the practical consequences are thought provoking. It is argued by him that if Surendran and Mohanan are followed, a person can safely own or possess in his house or property any quantity of liquor without any apprehension of any criminal liability because as per Surendran and Mohanan, possession of liquor by him will not be an offence under Section 55(a) of the Act, since his possession of liquor is not "in the course of export or transport". 42. It is also submitted that if a person owns and possesses millions of litres of liquor, he may keep it in his house and instead of transporting the same by himself, he will engage some body else like his driver or servant to transport it because as per Surendran, possession in the course of transport will make him liable for offence under Section 55(a), it is submitted. Thus, the net result is that the main offender will get scot-free for the mere reason that his possession of liquor in his house, building or property is not "in the course of transport, import or export", it is submitted. Learned Public Prosecutor vehemently argued that legislature would not have ever intended that such main culprit must escape. 43. Learned Public Prosecutor also pointed out that in Surendran and Mohanan, Division Benches of this Court were considering small quantities of toddy and arrack. A situation in which many other contraband articles like spirit or intoxicating drugs in huge quantity are possessed by an individual in his building or premises is not visualised in the above decisions, it is submitted. A case of this nature wherein huge quantity of spirit is possessed by a person was not in the mind of the Division Benches, in Surendran's case and in Mohanan's case, when it laid down the law that possession simpliciter is not an offence under Section 55(a) of the Act, that too, by ignoring the dictum in Bindu’s is strongly argued. 44. No doubt, this Court cannot shut its eyes to the stark realities pointed out by learned Public Prosecutor. I am satisfied of the various submissions made by learned Public Prosecutor. The above facts are very relevant while considering the criminal liability of a person under Section 55(a) of the Act, for illegal possession of liquor. Yet, I cannot deviate from the discipline of this Court and hold that the view expressed in Surendran's case and Mohanan is not correct or that what is laid down in Bindu is correct, especially any of the above grounds stated by learned Public Prosecutor. I cannot ignore the conflicting dictum laid down in any of the three decisions of the Division Benches. Yet, I cannot refer the matter to a Full Bench also, as a Single Judge has no such power, in the light of Kannappan’s case referred above. 45. So, to crack the problem before me is not an easy task. Yet, if hopefully, there is any decision of the Supreme Court which will throw some light on the crucial question I may possibly be able to resolve the tough situation. With this in view, on search, I find a decision of the Supreme Court comes to my rescue. So, to crack the problem before me is not an easy task. Yet, if hopefully, there is any decision of the Supreme Court which will throw some light on the crucial question I may possibly be able to resolve the tough situation. With this in view, on search, I find a decision of the Supreme Court comes to my rescue. In P. K. Arjunan v. State of Kerala, 2007 (2) KHC 277 : 2007 (9) SCC 516 : 2007 (2) KLD 77 : JT 2007 (5) SC 53 : 2007 (2) KLT 958 : AIR SC 2331 it is held, as follows: "The Act was enacted by the Maharaja of Cochin. After the formation of the State of Kerala, the said Act was adopted by the State. Provisions of the said Act having regard to the subject-matter dealt with thereby should, in our opinion, be read in the context of Article 47 of the Constitution of India. Dealing in liquor is considered to be "res extra commercium)", The Act prohibits dealing with the said commodity except by way of a licence on the terms and conditions mentioned therein. Illegal manufacture, possession, transport, export, etc. have been brought within the purview of the penal provision contained in Section 55 of the Act. Various new provisions have been introduced by way of amendment carried out in the said Act from time to time to bring within the purview of the Statute the offences which were then unknown". (emphasis supplied) 46. I have already held that the act of "possession" was included in Section 55(a) of the Act, as per the original Act of 1077 (in 1902) itself. Possession of liquor, in contravention of provisions of the Act, the Rules and Order is an offence, as per the original Act itself. It cannot be said that the act of "possession" was brought within the purview of the Statute only in 1975, as per the amendment. 47. Therefore, it cannot also be said that offence of illegal possession of liquor was unknown, till amendment in 1975. All what is added in Section 55(a) by the amendment Act of 1975 is, the act of "transit". No other change is brought into the Statute, as far as the acts of "possession" or "transport" are concerned, as per the amendment Act of 1975. All what is added in Section 55(a) by the amendment Act of 1975 is, the act of "transit". No other change is brought into the Statute, as far as the acts of "possession" or "transport" are concerned, as per the amendment Act of 1975. Therefore, going by the dictum laid down by the Supreme Court in Arjunan’s case, lacuna which was sought to be remedied in the Statute" by the amendment in 1975 was only to bring the act of illegal "transit" also, within the purview of penal provisions contained in Section 55(a), by Section 4 of amendment Act, Act 10 of 1975. 48. There is nothing in Arjunan to indicate that possession of liquor will be punishable under Section 55(a), only if relates to "export, import or transport", as held by the Division Bench of this Court in Surendran’s case or in Mohanan’s case. Therefore, it follows that mere illegal possession was an offence, as per Section 55(a) of the original Act, whether it is in the course of ‘export, import or transport’ or not. Such "possession" was an offence even prior to amendment of 1975. 49. The word "possesses" is not introduced into Section 55(a) of the Act for the first time, as per the amendment brought out by Section 10 of 1975. The dictum laid down in Bindu’s case on the scope of offence under Section 55(a) of the Act is therefore, in consonance with what is laid down in Arjunan’s case and the provision as it stood before and after amendment. Therefore, as held in Bindu, a person will be guilty of offence under Section 55(a) of the Act, if he "possesses" liquor in contravention of the Act or of any Rule or order made under the Act. 50. Though there is a categoric pronouncement on what constitutes offence under Section 55(a) of the Act, in Bindu's case, unfortunately, the said decision was not brought to the notice of the Benches which considered Surendran and Mohanan. The said decision is not referred to nor distinguished in the latter decisions. Bindu still holds the field. Surendran and Mohanan were rendered in ignorance of Bindu. The decision in Bindu's case was also rendered by a Division Bench of this Court, referring to Section 55(a) of the Act which stood amended by Act 10 of 1975. 51. The said decision is not referred to nor distinguished in the latter decisions. Bindu still holds the field. Surendran and Mohanan were rendered in ignorance of Bindu. The decision in Bindu's case was also rendered by a Division Bench of this Court, referring to Section 55(a) of the Act which stood amended by Act 10 of 1975. 51. Therefore, with great respect, I hold that I am bound to follow the dictum laid down in Bindu’s case, (especially in the light of Arjunan) which lays down that if any person possesses liquor in contravention of the Act or of any Rule or Order made under the Act, he will be liable for each such act and will be guilty of offence under Section 55(a) of the Act. If any person imports, exports, transports, transits or possesses liquor or any intoxicating drug, in contravention of the Act or any Rule or Order made under the Act he will be committing offence under Section 55(a) of the Act. 52. Now, having held that mere illegal possession of liquor, in contravention of any of the provisions of the Act or Rules is an offence under Section 55(a) of Abkari Act, on the facts of this case, next question before me is, whether appellant committed the said offence, having kept in possession, 900 litres of spirit, as alleged. To answer this question, I have to start with Section 13 of the Act which prohibits possession of liquor is prohibited and it ' reads as follows: "13. Possession of liquor or intoxicating drug in excess of the quantity prescribed by the Government prohibited.- No person not being a licensed manufacturer or vendor of 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 licence 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 charged 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." 53. A close reading of Section 13 lays reveals that the said provision does not lay down any blanket ban on possession of all kinds of liquors. What is prohibited thereunder is only possession of different kinds of liquors which are specifically referred to in the notification. The possession will become illegal only if a person is having "excess quantity" than what is prescribed for each type of liquor referred to in notification. Section 13 of the Act lays down that no person other than a licensed manufacturer or vendor of liquor shall have in his possession any quantity of liquor in excess of such quantities, as the Government may prescribe by notification, as on the date of commission of offence. 54. It is stated in the notification SRO No. 89/69 issued by the Government under Section 13 of the Act that no liquor of the kind specified in column (i) of the table exceeding quantity prescribed against the column number (ii) shall be possessed, except under a permit or license issued by the competent authority under the Act. Therefore, prohibition of possession is in respect of the kind of liquor which is specified in the notification and that too, if quantity is in excess of what is prescribed by notification. 55. The notification relates only to certain kinds of liquor. Such liquors named in the notification such are defined either under the Act or Rules. Therefore, if a person's is in possession of any liquor of any quantity which is not referred to in the notification, it will not be illegal under Section 13 of the Act. It is clear from Section 13 read with Notification thereunder the nature of liquor is very important to conclude whether possession of excess quantity of such liquor is prohibited or not. 56. Coming to a specific instance, one of the items in the table in column no,1 of the notification can be looked into. Item No. 5 in the table in column No. 1 of the notification is "rectified spirit" and the quantity prescribed for the said liquor is 250 ml. 56. Coming to a specific instance, one of the items in the table in column no,1 of the notification can be looked into. Item No. 5 in the table in column No. 1 of the notification is "rectified spirit" and the quantity prescribed for the said liquor is 250 ml. Hence, a person is prohibited from possessing "rectified spirit" in excess of 250 ml, as per Section 13 of the Act read with the above notification. Therefore, to hold a person liable for violation of Section 13 of the Act, it must be proved by prosecution that he was in his possession was "rectified spirit" and (not "liquor", generally), in excess of 250 ml. 57. Learned Public Prosecutor argued that possession of "rectified spirit" is not only prohibited under Section 13 read with Notification SRO No. 89/69 but, such possession is in prohibited under Rules 3 and 15 of the Rectified Spirit Rules also. Rule 3 of Rectified Spirit Rules prohibits a person from possessing "rectified spirit" in excess of the quantity prescribed by the Government by notification under Section 13 of the Act (i.e., 250 ml), except under and in accordance with the terms and conditions of license issued under these rules. 58. Rule 15 lays down that any person desirous of possessing and using for a bona fide medicinal, scientific industrial or such other purpose or desirous of possessing and selling duty paid rectified spirit shall take out a license on payment of an annual fee etc. But, appellant has no case that he has any such licence. Therefore, possession of spilt is an offence under Section 55(a) it is argued. 59. It is also argued by learned Public Prosecutor that possession of "spirit is prohibited under Rule 6 of the Cochin Denatured Spirit and Methyl Alcohol Rules, 1965 ("Denatured Spirit Rules" for short). Rule 6 of the Denatured Spirit Rules lays down that any person, without a license possesses within any local area to which the Act applies "denatured spirit" up to a maximum of 1.5 litres for any medicinal or industrial purposed etc. Rule 6(2) lays down that no person shall possess within any local area to which the Act applies "denatured spirit" in excess of 1.5 litres. 60. Rule 6(2) lays down that no person shall possess within any local area to which the Act applies "denatured spirit" in excess of 1.5 litres. 60. It is also submitted by learned counsel for appellant that appellant is guilty of offence under Section 55(a) read with either Rule 6 of Cochin Denatured Spirit and Methyl Alcohol Rules, 1965 or Rule 3 and 15 of the Kerala Rectified Spirit Rules 1972. Learned Public Prosecutor submitted that whether the article is "denatured spirit" or "rectified spirit a person shall not possess more than 2.5 litres of such liquor. But, in this case the quantity involved is 900 litres of "spirit" and hence, it is an offence under Section 55(a) of the Act. 61. According to him, having proved that the article which was in possession of appellant is "liquor", as per the chemical analysis report Ext. P8, appellant is liable for offence under Section 55(a) of the Act. On a reading of Rule 3 of the Kerala Rectified Spirit Rules, 1972 along with notification SRO No. 89/69, it can be seen that a person is prohibited from possessing "rectified spirit" in excess of 2.5 liter, whereas, under Rule 6 of Cochin Denatured Spirit and Methyl Alcohol Rules, 1965 possession of "Denatured spirit" in excess of 1.5 liter is prohibited, as referred to therein. 62. Therefore, it is clear that depending upon the nature of "spirit", the prohibited or permissible quantity differs. Going by definition, "Denatured spirit" is different from "Rectified spirit". Section 2(b) of the Denatured Spirit Rules defines "denatured spirit" and it is exhaustive in description. The definition of "Denatured spirit" and "Rectified spirit" reveals that those are different from each other in various aspects. 63. Rule 2(i) of the Rectified Spirit Rules defines "rectified spirit" and as per the said provision, "Rectified spirit" means plain undenatured alcohol of a strength not less than 50° over proof and includes absolute alcohol". Therefore, to constitute "denatured spirit" and ‘rectified spirit", criteria are different. Though "denatured spirit" and "rectified spirit" both contain alcohol, mere presence of alcohol is not sufficient to call the article either "denatured spirit" and "rectified spirit". 64. Though "denatured spirit" and "rectified spirit" contain alcohol, "denatured spirit" is unfit for human consumption whereas, "rectified spirit" can be potable also. There are other differences also. Though "denatured spirit" and "rectified spirit" both contain alcohol, mere presence of alcohol is not sufficient to call the article either "denatured spirit" and "rectified spirit". 64. Though "denatured spirit" and "rectified spirit" contain alcohol, "denatured spirit" is unfit for human consumption whereas, "rectified spirit" can be potable also. There are other differences also. Therefore, only if an article which contains alcohol conforms to the description contained in the definition of "denatured spirit" or "rectified spirit", such article can be said to be either of such article. In other words, merely because a liquid contains or consists of alcohol, it cannot be said to be either "denatured spirit" or "rectified spirit". 65. So, for proving that a person is in illegal possession of "denatured spirit" or "rectified spirit", firstly, it must be proved that the liquid not only contains alcohol but, it tallies with the description contained in the definition. To prove this fact, the article will have to be subjected to scientific examination. A mere oral statement that an article is "denatured spirit" or "rectified spirit", as defined under the Act or Rules may not be sufficient to hold that the article is either "denatured spirit" or "rectified spirit". 66. Though learned Public Prosecutor argued that the article is "denatured spirit" or 'rectified spirit", as per prosecution records, article seized is described generally as "spirit". But, "spirit" is not included in the notification as a prohibited liquor and no quantity of "spirit" is also prescribed therein. The word, "Spirit" is not defined under the Act also. What is defined under Section 3(9) of the Act is "Spirits" and not "Spirit". 67. Section 3(9) of the Act defines "Spirits" and it means, "any liquor containing alcohol and obtained by distillation’’. As per Section 3(10) of the Act, "liquor" includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol. It is thus, clear that though "liquor" includes all liquid consisting of or containing alcohol, to constitute "Spirits", it is not sufficient if the liquid contains alcohol but, such liquid must have been obtained by "distillation". All liquids containing alcohol are therefore, not "Spirits" or "spirit". 68. "Spirits" may also be a "liquor" but, a liquid containing alcohol can be said to be "Spirits", only if it is obtained by distillation. All liquids containing alcohol are therefore, not "Spirits" or "spirit". 68. "Spirits" may also be a "liquor" but, a liquid containing alcohol can be said to be "Spirits", only if it is obtained by distillation. A reading of the definitions of various liquors, it can be seen that they considerably differ in nature. Arrack, spirits, toddy etc. are also defined in the Act and Rules. These articles are having different characteristics, though all of them have a common ingredient viz., "alcohol". But, mode of manufacturing of these articles is different. 69. While "toddy" is made by fermentation. "Spirits" is obtained by distillation. Learned Public Prosecutor himself pointed out that "arrack" can be made by adding water to "potable spirit". So, such arrack may be "liquor" being a liquid containing alcohol but, it cannot be termed as "Spirits", since such arrack is obtained by merely adding water and not by distillation. So, even though both liquids contain alcohol", both are different. The provision which are applicable to "toddy" cannot be applied to "spirits". The provisions relating to "arrack" and "spirits" are also different. 70. It is also to be noted that while permissible quantity is prescribed for possession of denatured spirit or rectified spirit as per the Rules and Act, there is total prohibition for possession of arrack, as per Section 8 of the Act. If it is a case of possession of Indian made Foreign Liquor, depending on the quantity, offence committed may be under Section 55(a) of the Act. There are so many other provisions under the Act and Rules which disclose that depending upon the nature of the article and quantity, the provision which is contravened and the offence which is committed will be different. 71. In such circumstances, the prosecution is bound to prove what exactly is the kind or type of liquor involved in the case and whether such liquor is possessed by accused, in contravention of the provisions of the Act or Rules. It is only if prosecution proves that a particular liquor as referred to in the Notification is in possession of accused, it can be ascertained whether there is prohibition in possessing such liquor and as to what is the prohibited or permitted quantity etc., as per Section 13 of the Act. It is only if prosecution proves that a particular liquor as referred to in the Notification is in possession of accused, it can be ascertained whether there is prohibition in possessing such liquor and as to what is the prohibited or permitted quantity etc., as per Section 13 of the Act. In the absence of it whatever be the quantity involved, a person cannot be held guilty for offence under Section 13 read with 55(a) of Act. 72. Therefore, if prosecution has to establish that a person committed offence under Section 55(a) of the Act, by having in his possession, "denatured spirit" or "rectified spirit or any other "Spirits", as defined, it has to prove by chemical evidence that it is an article falling under the definition. It must have all characteristics of the article to constitute such article under the definition. A mere statement that the article is "spirit" is not enough for the Court to hold that it is "spirit". 73. The prosecution must produce scientific evidence to prove that the alleged article conforms to the characteristics of the article as defined. The Court cannot, in the absence of such evidence, hold that the article is a particular article. There may be various types of liquids which may contain alcohol. But, possession of all such liquids is not prohibited under Section 13 of the Act. Only possession of excess quantity of certain liquor as is notified is prohibited. If liquor is not the one referred to in the notification, prohibition under Section 13 will not apply. 74. So, unless prosecution proves that the article possessed by accused is the particular type of liquor which is referred to in the notification issued under Section 13 of the Act, he cannot be convicted for offence under Section 55(a) of the Act. By merely stating that an article is spirit, denatured spirit or rectified spirit, prosecution cannot succeed in establishing that a person is guilty of contravention of Section 13 or Rules framed under the Act and commission of offence under Section 55(a) of Act. 75. By merely proving that article seized from accused consists of alcohol or it contains alcohol and thereby, it is "liquor", as defined under the Act, prosecution cannot seek conviction of accused, since only possession of liquor referred to in the notification alone is prohibited in excess quantity. 75. By merely proving that article seized from accused consists of alcohol or it contains alcohol and thereby, it is "liquor", as defined under the Act, prosecution cannot seek conviction of accused, since only possession of liquor referred to in the notification alone is prohibited in excess quantity. What is prohibited under Section 13 is not possession all kinds of liquor i.e., liquid containing and consisting of alcohol. There is no absolute bar for possession of liquor but, only possession of such liquor and such quantity as notified and is barred. 76. Learned Public Prosecutor strongly argued that the contraband article may be either denatured spirit or rectified spirit but, accused having been in possession of more than permissible quantity of 250 ml., he is liable for offence. With great respect, I am unable to agree with this argument. The provision contained in Section 55(a) calls for stringent imprisonment which extends to 10 years and minimum fine is Rs. 1,00,000/- It is well settled that penal provision has to be strictly interpreted especially when the punishment is severe. 77. A reading of Section 55(a) read with Section 13 of the Act and the notification issued thereunder, it is clear that Section 13 of the Act will be contravened, only if a person possesses excess quantity of a particular kind of liquor which is referred to in the notification. Section 13 does not prohibit possession of all kinds of "liquor" as such. There is no total ban for possession of liquor as per the said provision but, only possession of liquor which is specifically referred to in the notification, in excess of the quantity prescribed is prohibited. 78. Therefore, to hold a person guilty of offence under Section 55(a), for acting in contravention of Section 13 of the Act, it is not enough if prosecution proves that accused was in possession of "liquor" generally, as defined under the Act i.e., it is a liquid consisting of or containing alcohol, as stated in definition of "liquor". To prove that the liquor is of a particular kind of liquor, and it conforms to the details referred to in the definition of such type of liquor, prosecution has to adduce chemical or scientific evidence. To prove that the liquor is of a particular kind of liquor, and it conforms to the details referred to in the definition of such type of liquor, prosecution has to adduce chemical or scientific evidence. The investigating officer must therefore, get a report from the scientific expert that the sample of the article allegedly possessed by accused conforms to definition of the particular type of liquor in the Act or the Rules, in cases in which a person is called upon to answer the charge for illegal possession of liquor under Section 55(a) of the Act. 79. Specific request must be made to the chemical analyst to report whether alleged contraband article is the particular type of liquor, as defined under the Act or the Rules. In the absence of such evidence, it is not proper for the Court to hold, on the basis of oral evidence alone that the article seized is anyone of the particular kind of liquor referred to in the notification, possession of which is prohibited. At any rate, it is not sufficient, if a Chemical analysis report is obtained showing the mere fact that alleged contraband article is a liquid containing alcohol, i.e., "liquor", in cases falling under Section 13 read with Section 55(a) of the Act. 80. In this case, the article allegedly possessed by accused is orally referred to by the witnesses as "spirit" but, there is no Scientific evidence to show whether it is "Spirit" or any other particular type of liquor, possession of which, is prohibited under Section 13 read with the notification. It is not even proved whether appellant was in possession of "denatured spirit" or "rectified spirit", as defined or as argued. The so-called article, "Spirit" is not defined under the Act. 81. Prosecution has thus, failed to establish that the article involved in this case is contraband article, falling under Section 13 of the Act read with notification or under Rule 6 of the Cochin Denatured Spirit and Methyl Alcohol Rules and Rule 3 of the Kerala Rectified Spirit Rules. It can also be seen that while questioned under Section 313 of the Code or as per the Charge, it is not brought to the notice of accused that he was in possession of any particular "Spirits", "denatured spirit" or "rectified spirit". In such circumstances, the conviction and sentence passed against appellant are unsustainable. It can also be seen that while questioned under Section 313 of the Code or as per the Charge, it is not brought to the notice of accused that he was in possession of any particular "Spirits", "denatured spirit" or "rectified spirit". In such circumstances, the conviction and sentence passed against appellant are unsustainable. In the result, the following order is passed. (i) The conviction and sentence passed against the appellant under Sections 55(a) and 58 of Abkari Act are set aside. (ii) The appellant is found not guilty of offence under Sections 58 and 55(a) of the Abkari Act and he is acquitted of the said offence. (iii) The appellant is set at liberty forthwith. The appeal is allowed.