M.R Hariharan Nair, J.:— The interesting question that is posed in this case is with regard to the ingredients necessary for constituting the offence under S. 55(a) and S. 58 of the Abkari Act.

2. The accused, it was alleged, was found in possession of 8 litres of arrack intended for sale kept in a plastic keg of 10 litres capacity in a public place at about 8 p.m on 25.2.1992 Based on the evidence of PW 1, who is the Preventive Officer, who made the seizure, as also PW 2, who is an Excise Guard, the trial court found the accused guilty of the offence under S. 55(a) of the Abkari Act and sentenced him to undergo R.I for six months and to pay fine of Rs. 1,000/- (in default R.I for three months).

3. The learned counsel for the petitioner did not press before me any contention with regard to the fact of seizure of the arrack in question, but it was contended that the conviction should have been for offence under S. 58 of the Abkari Act and not under S. 55(a). Based on the said contention it was further submitted that the substantive term of imprisonment might be set aside and the imposition of fine ordered instead.

4. For considering the grant of the benefit it is necessary to understand and distinguish the scope and ambit of the offences contemplated under Ss. 55(a) and 58 of the Abkari Act, both of which refer to the aspect of possession. It is the possession of the contraband that is made punishable under both the sections. But the sentence for the two offences are prescribed differently. For the sake of convenience the two sections may be extracted hereunder:

“S. 55. For illegal import, etc.: Whoever in contravention of this Act or of any rule or order made under this Act or of any licence or permit obtained under this Act.

a) imports, exports, transits or possesses liquor or any intoxicating drug; or

b) manufactures liquor or any intoxicating drug;

c) cultivates the hemp plant (Cannabis sativa)… (or collects any portion of such (plant) from which an intoxicating drug can be manufactured); or

d) (taps or causes to be tapped) any toddy producing trees, or

e) (draws or cause 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 liquor or any intoxicating drug;

Shall on conviction before a Magistrate be punished:—

1) for any such offence, other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to two years and with fine which may extend to five thousand rupees;

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court,—

i) such imprisonment shall not be less than six months and fine shall not be less than one thousand rupees for a first offence; and

ii) such imprisonment shall be rigorous and shall not be less than one year and fine shall not be less than two thousand rupees for a subsequent offence;

2) for an offence falling under clause (d) for clause (e), with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both.”

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“S. 58: For possession of illicit liquor: Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid therefor, shall on conviction before a Magistrate, be punished with fine which may extend to three thousand rupees or with imprisonment for a term which may extend to six months, or with both”.

5. Obviously the words ‘possesses’ and ‘possession’ of liquor or intoxicating drugs appear in both of the said two sections. The aspect of applicability of the section to a particular case came up for decision of this Court in Rajeevan v. Excise Inspector (1995 (1) KLT 38). It was found that for applying S. 55(a), it has to be pleaded and established that the accused was found in possession of liquor in the course of export or import or in the process of movement through the State territory and that if the possession was not under those circumstances only S. 58 would apply. There is a later decision taking a contrary view in Meenakshi v. Excise Inspector & Anr. (1995 (1) KLT 738), where it was held that the words ‘transport, transit and possession or possesses’ used in S. 55(a) do not in any way qualify or modify the word ‘exports’ etc.; that each of these is an independent act made punishable as such; that the scope of amendment of 1975 being limited to the inclusion of the word ‘transits’ in S. 55(a), there cannot be any dispute after the amendment that possession of liquor or intoxicating drug in contravention of the Act or of any rule or of any licence is an offence under S. 55 of the Act and that for the offence to come under the said section it is not necessary that it should be in the course of export since exporting of liquor or any other intoxicating drug is a specific offence under that clause. While arriving at the said conclusion the learned Single Judge referred to the earlier decision in Rajeevan's case (supra) and found an error in the said decision. It was held that, the words ‘transport, transit or possesses’ under S. 55(a) was not substituted by Act 10 of 1975 and that only the word ‘transit’ was introduced by that amendment and that the fact that in certain books the words ‘transport, transit or possesses’ are bracketed to indicate the amendment by Act 10 of 1975 alone leads to the confusion. The Court took notice of the fact that the decision in Rajeevan's case proceeded on the assumption that all the three words aforementioned were introduced through one and the same amendment, whereas actually only the word ‘transit’ was introduced then. Thereafter the conclusion that after the amendment on a plain reading of S. 55(a) that Section could apply to mere possession, was arrived at.

6. I have seen the amendment of 1975. What is introduced through the amendment is only the word ‘transit’ in S. 55 in between the words ‘transports or possesses’. Even under the Act as it originally stood, the words ‘imports, exports, transports or possesses’ liqour were already there. The question will then arise how and why possession of liquor is made liable to different punishments under Ss. 55(a) and 58. I am of the view that the answer can be got by a careful reading of the sections as it originally stood. The word ‘possesses’ appearing in S. 55(a) comes in the context of the preceding words ‘imports, exports and transports’. What is contemplated there is possession in the course of the said activities. The heading given to the section itself reads as ‘for illegal import, etc.’. The higher punishment contemplated in S. 55(a) obviously is taking into account the fact that possession of liquor intended there is in the course of the activities mentioned earlier viz., imports, exports and transports. On the other hand, in S. 58, the possession contemplated is at the stage after import, export, transport etc. which had already taken place some time back at the hands of somebody else. What is the distinguishing factor is that for the offence under S. 58, the person in possession has knowledge of the fact that the liquor was unlawfully imported, transported or manufactured or is knowing that the duty, tax or rental payable under the Act had not been paid. The possessor therein is not directly involved in the process of import, export or transport and all that he knows at the time of holding possession of the liquor is the fact that the liquor had not come through genuine source, but it had already been unlawfully imported, manufactured or transported. It is such possession that is made liable to a lesser punishment under S. 58. The Court has therefore to carefully analyse the pleading in the complaint as also the evidence adduced to see whether the possession in question was in the course of import, export, transport (or transit in the case of offence after the amendment) or whether it was merely with the knowledge that somebody else had imported, transported or manufactured the same some time back or knowing that duty, tax or rental payable under the Act had been evaded.

7. I shall now approach the facts of the present case bearing in mind the aforesaid distinctibn. What is revealed by the occurrence report, marked as Ext. P.2, as also the mahazar, marked as Ext. P.1, is that the patrol party found the accused standing near the Nedumboyi bus stand at Tellicherry holding a can of 10 litres which contained 8 litres of illicit arrack and also a glass which spread smell of alcohol. What is obvious therefore is that the complainant did not have any case to present before the court at the time or in his evidence that the possession of the liquor was in the course of import, export, transport or transit and that what he had was only possession of liquor with the knowledge that it had illicit origin. Only offence under S. 58 of the Act is therefore attracted on the facts and circumstances of this case.

8. I have carefully perused the judgment of the trial court as also that of the Court of Sessions. It is seen that the question whether it is S. 55(a) or S. 58 that is attracted on the facts and circumstances of the present case was not considered by either of these courts for the obvious reason that it had not been raised before them. Any way, there is no bar that a question of law should not be raised before the revisional court. Having raised it before me and it being found that it is only S. 58 of the Act that is attracted on the facts of this case, it is necessary to give necessary relief to the petitioner. Accordingly, the judgments of the Courts below are modified to the extent that the conviction passed against the accused is altered from S. 55(a) to S. 58 of the Abkari Act.

9. What remains to be considered is the aspect of sentence. For the offence under S. 58 imprisonment is not compulsory. The court has the option to impose either fine, which may extend to Rs. 3,000/- or imprisonment, which could extend upto six months or both. In the absence of any case for the prosecution that the accused is a habitual offender or that there was any previous conviction against him, I am of the view that leniency can be shown in the matter of punishment. The accused is accordingly sentenced to pay fine of Rs. 2,000/- In case of default he will undergo R.I for one month.

10. The revision is disposed of as above. The trial court will implement the modified punishment aforementioned.