Judgment : 1. The accused in Sessions Case No.246 of 2002 of the Additional Sessions Court (Adhoc-II), Kozhikode who stands convicted under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for 1= years and to pay fine of 1,00,000/-, in default, to undergo rigorous imprisonment for six months, has come up in appeal. 2. On getting reliable information that illicit arrack was being kept by the appellant in his possession at his house, PW1, Preventive Officer of the Quilandy Excise Range and party searched the house of the appellant at 1.00 p.m. on 15.10.1997. The appellant was present at the house. In the search, MO1 Can containing 1= litres of arrack was seized from the kitchen of the house. The appellant was placed under arrest. Samples were drawn. On reaching the Excise Office, Exhibit P5 occurrence report was prepared. The appellant along with the properties were produced before the Court on the very next day through Exhibit P7 property list. A forwarding note, the copy of which is Exhibit P8, was also filed. The sample of the contraband was subjected to chemical analysis and Exhibit P9 certificate of chemical analysis was received, which states that the sample analyzed contained 37.27% by volume of ethyl alcohol. Consequently, the appellant was charge sheeted for the offence under Section 55(a) of the Abkari Act. 3. On the side of the prosecution, PWs 1 to 4 were examined and Exhibits P1 to P12 were marked. No defence evidence was adduced. The court below found the appellant guilty of the offence under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid. 4. The learned counsel for the appellant Sri. P.V. Kunhikrishnan argued that an offence under Section 55(a) will not lie in a case like this as there is no case for the prosecution that the contraband was possessed by the appellant in the course of any export, import, or transport. Further, according to the learned counsel for the appellant, an offence under Section 58 of the Abkari Act also will not lie as there was no conscious possession of the contraband, with the knowledge that it was unlawfully manufactured. 5. The learned counsel for the appellant has taken me through the entire evidence adduced by the prosecution. Further, according to the learned counsel for the appellant, an offence under Section 58 of the Abkari Act also will not lie as there was no conscious possession of the contraband, with the knowledge that it was unlawfully manufactured. 5. The learned counsel for the appellant has taken me through the entire evidence adduced by the prosecution. According to PW1, Preventive Officer of the Excise Range, Quilandy, while he along with the Excise part were on patrol duty, he got information that the appellant has stored in his possession illicit arrack at his house. After preparing Exhibit P1 search memo, he along with the Excise Party reached the house of the appellant. The appellant was present there at the house. On a search of the house, MO1 Can containing 1= litres of illicit arrack was seized from the kitchen of the house. Exhibit P2 search list was prepared. He placed the appellant under arrest. Exhibit P4 is the arrest memo. Samples were drawn from the contraband. They took the appellant and the contraband to the Excise Office and handed over the appellant and the contraband to the Excise Inspector who was present there. The Excise Inspector registered Exhibit P5 occurrence report. The appellant was produced before the court on the next day through Exhibit P6 remand report. The contraband was produced through Exhibit P7 property list. A forwarding note was filed for subjecting the sample of the contraband to chemical analysis. Exhibit P8 is the copy of the forwarding note. He obtained Exhibit P9 certificate of chemical analysis, which proves that the sample contained 37.27% by volume of ethyl alcohol. It seems that PW1 was subjected to searching cross-examination by the learned defence counsel. Nothing has been brought out in order to impeach the credit or impair the credibility of PW1. 6. PW2 was the Excise Guard who had accompanied PW1 to the house of the accused for the search and seizure. He witnessed the search and seizure. He corroborated the versions of PW1 in all material particulars. Even though PW2 was also subjected to searching cross- examination, nothing could be elicited in order to discredit him. It is true that as usual, the so called independent witness cited by the prosecution has turned hostile to the prosecution. It has come out that the said witness who was examined as PW3 is none other than the brother-in-law of the appellant. It is true that as usual, the so called independent witness cited by the prosecution has turned hostile to the prosecution. It has come out that the said witness who was examined as PW3 is none other than the brother-in-law of the appellant. 7. PW4 was the Excise Inspector of Quilandy for the period from 09.06.2000 to 25.08.2001, who investigated the case and filed the final report. He obtained Exhibit P12 certificate from the Secretary of the Quilandy Municipality stating that the building in question from where the contraband was seized, belongs to the appellant. 8. On a careful scrutiny of the entire evidence of the prosecution, it has come out that at 1.00 p.m., on 15.10.1997, PW1 in the company of PW2 seized 1= litres of arrack from the kitchen of the house of the appellant. The appellant was also present in the house, and consequently, he was placed under arrest. The sample drawn from the contraband which was subjected to chemical analysis proved that it contained 37.27 % by volume of ethyl alcohol. It stands proved that it was arrack that was seized from the house of the appellant. The learned counsel for the appellant has invited my attention to the decision in Surendran v. Excise Inspector [ 2004(1) KLT 404 ], wherein it was held in paragraph 9 that: "Thus, it appears that the case shall fall within the ambit of S.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 case the possession is merely with the knowledge of the goods having been illegally imported or manufactured, the case would fall within the mischief of S. 58."It was held that when a person is in possession of liquor while illegally exporting, importing, or transporting, the case would be covered under Section 55(a) of the Abkari Act. With approval, the decision noted Supra has been followed by a Division Bench of this Court in Josekutty v. State of Kerala [2013(1) KLT 434]. 9. In this particular case, the prosecution has no case that the appellant was found in possession of liquor in the course of any import, export, transport or transit. With approval, the decision noted Supra has been followed by a Division Bench of this Court in Josekutty v. State of Kerala [2013(1) KLT 434]. 9. In this particular case, the prosecution has no case that the appellant was found in possession of liquor in the course of any import, export, transport or transit. When applying the dictums laid down in the decisions in Surendran (Supra) and Josekutty (Supra), it is clear that the offence will not come under Section 55(a) of the Abkari Act. As regards the next aspect, regarding Section 58 of the Abkari Act, the learned counsel for the appellant has argued that the prosecution has failed to prove conscious possession of the contraband on the part of the appellant and further that the prosecution has failed to prove that the appellant had knowledge that the contraband was unlawfully manufactured or procured. Of course, the initial burden is on the prosecution to show that there was conscious possession of the contraband by the appellant. Once that initial burden is discharged, the burden shifts to the accused to show that he was not in conscious possession. 10. In this particular case, there is no dispute or challenge to the fact that the contraband was seized from the house of the appellant, and that the appellant was present at the house. When the seizure was effected from the house of the appellant, especially when the appellant was present in the house, the appellant is expected to explain as to how the same happened to be inside his house. Here, in this case, when examined under Section 313 Cr.P.C., apart from stating that he was innocent, the appellant has not explained as to how the contraband happened to be inside his house. The appellant had not cared to offer any explanation at all. Even the appellant had no case that he was not in conscious possession of the contraband. Regarding the other aspect, it has to be noted that arrack is banned in the State of Kerala. While mentioning arrack, it need not be specifically mentioned that arrack is illicit. If arrack is found in the possession of any person, or arrack is seized, it follows that it was procured through illicit means or manufactured unlawfully, for which no further evidence is required in the light of the clear ban of arrack. While mentioning arrack, it need not be specifically mentioned that arrack is illicit. If arrack is found in the possession of any person, or arrack is seized, it follows that it was procured through illicit means or manufactured unlawfully, for which no further evidence is required in the light of the clear ban of arrack. Matters being so, I cannot agree with the learned counsel for the appellant that Section 58 of the Abkari Act cannot be attracted. 11. Lastly, learned counsel for the appellant argued that, in order to take the aid of Section 58 to convict the appellant, an opportunity has to be given to the appellant to defend a charge under Section 58 of the Abkari Act, as no such charge was specifically framed by the court below. While considering the ingredients of Sections 55(a) and 58 of the Abkari Act, it has to be noted that in this particular case there was no proper application of the provision of law by the court below. When facts were found, the law has to be properly applied, for which any further opportunity need not be granted to the appellant. The fact that the contraband was seized from the possession of the appellant is proved. The further fact that the appellant was aware that the contraband was unlawfully manufactured, is explicit from the circumstances, which I have mentioned above. Matters being so, a mere remand will not serve any purpose at all. The facts proved through the evidence of the prosecution clearly constitute an offence under Section 58 of the Abkari Act in this case, and therefore, the conviction under Section 55(a) of the Abkari Act has necessarily to be altered to a conviction under Section 58 of the Abkari Act. 12. Learned counsel for the appellant has pointed out that there were no criminal antecedents on the part of the appellant, and the appellant has to be considered as a first offender. An argument is also canvassed to the effect that while imposing sentence, the quantity of contraband involved and the circumstances in which the appellant is placed have also to be taken note of. 13. There was only a meager quantity of 1= litres of contraband involved in this case. The prosecution has no case that there is any criminal antecedent on the part of the appellant. 13. There was only a meager quantity of 1= litres of contraband involved in this case. The prosecution has no case that there is any criminal antecedent on the part of the appellant. It is true that an offence under Section 58 of the Abkari Act is punishable with imprisonment for a term which may extent to 10 years and a fine which shall not be less than Rs.1 lakh. The learned counsel for the appellant has invited my attention to the decision in Sasikumar and another v. State of Kerala(2012 KHC 4713)(SC), wherein an identical situation was dealt with by the Apex Court. In the said decision, it was held in paragraph 11 as follows: "We would like to further observe that from the facts of the case it is evident that the appellants and the other accused in this case are not the real men behind the nefarious trade of illicit intoxicants in the State. From the quantity seized from the possession of the accused and the manner in which it was being carried, it is evident that the three accused were only small time operators in the illicit trade of arrack and though visible, they constitute the weakest link in the chain of illicit trade in arrack. In those circumstances, we think a further reduction of the sentence would be quite in order. We, accordingly, reduce the sentence of imprisonment from 18 months, as awarded by the High Court, to one year and further reduce the sentence in default of payment of fine from six months to fifteen days." It was held in paragraph 13 as follows: "Before parting with the record of the case, we would like to point out that S.8(2) of the Abkari Act does not fix any upper limit for the fine but lays down that the fine shall not be less than Rs.1,00,000/-. Since the minimum amount of fine prescribed by the law is kept so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. Since the minimum amount of fine prescribed by the law is kept so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. We may note that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught committing the offence, they are hardly in position to pay the fine of Rs.1,00,000/- and for them the default sentence becomes an additional period of incarceration. In a way, fixing the minimum fine at such a high amount, regardless of the countless possible variables in the commission of the offence under S.8(1), leads to discrimination in favour of those convicts who have sufficient means to pay the fine and, thus, avoid any default imprisonment and the small fries for whom the default sentence would invariably mean an additional sentence of imprisonment. To our mind, it is desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine." 14. Considering the facts and circumstances, the meager quantity of contraband involved in this case, and the poor circumstances in which the appellant is placed, I am satisfied that the sentence of simple imprisonment for a term of two months, and a fine of Rs. l lakh, in default, simple imprisonment for one more month, will meet the ends of justice in this case. 15. In the result, this appeal is allowed in part by modifying the conviction as one under Section 58 of the Abkari Act and by modifying the sentence as follows: The appellant is sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.1 lakh, in default, to undergo simple imprisonment for one more month. Of course, it is made clear that the appellant is entitled to set off, of the period of detention already undergone by him in connection with the investigation, inquiry, and trial of this case, under Section 428 Cr.P.C.