JUDGMENT

1. Appeal filed under S. 374(2) of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C”).

2. The appellant/accused was convicted by the learned Additional Sessions Judge for offences punishable under Ss. 55(i) and 58 of the Abkari Act (in short, “the Act”). Separate sentences were imposed on the accused and it was directed that the substantive sentences should run concurrently. The prosecution case:—

3. On 20.04.1998, the accused was found transporting 20 bottles of Indian Made Foreign Liquor (in short, “IMFL”), each bottle containing 750 ml. of liquor, in two big shopper bags. It is further alleged thathe had secreted and stored 20 bottles of 375 ml. and 70 bottles of 180 ml. each of the same liquor for sale. Hence the prosecution contended that the accused had violated the above provisions of the Act.

4. After closing the investigation, a charge was filed before the learned Magistrate Finding that the case was exclusively triable by a Court of Sessions, learned Magistrate committed the case to the Sessions Court. Thereafter, it was made over to the Additional Sessions Court. Learned Additional Sessions Judge framed charges and at the time of trial, four witnesses were examined and eight documents and four material objects were marked. On evaluating the evidence adduced before the court, the learned Additional Sessions Judge found the accused guilty and convicted and sentenced him.

5. Heard Sri. Ravikrishnan, learned counsel for the appellant/accused and Sri K.K Rajeev, learned Public Prosecutor.

6. Learned counsel for the accused contended that there is no legal basis for the conviction. It is also submitted that the prosecution has not alleged any fact to indicate that the accused was engaged in sale of liquor or he stored liquor for sale. Therefore, it is contended by the learned counsel for the accused, the conviction of the appellant under S. 55(i) of the Act is patently illegal.

7. Another contention raised by the learned counsel for the accused is that conviction under S. 58 of the Act is also not based on sound legal principles. Essential ingredients to attract S. 58 of the Act have not even been alleged by the prosecution, leave alone the matter of proof, contended the learned counsel.

8. Per contra, learned Prosecutor contended that testimony of the material witnesses on the side of prosecution coupled with documents prepared contemporaneous to detection of the offence would indicate that all the ingredients to attract the offences under Ss. 55(i) and 58 of the Act have been made out.

9. Before dealing with the legal issues raised, it will be apposite to go through the evidence in the case. PW1 on 20.4.1998 was working as the Excise Inspector, Irinjalakuda. He received an information that the accused was engaged in sale of illicit liquor. P W1 has definitely spoken about the identity of the accused. At about 4 p.m on 20.4.1998, while PW1 and party were patrolling through the informed area, they found the accused approaching by holding two big shopper bags in each hand. When the accused saw the Excise Officers, momentarily he became perturbed and tried to withdraw from the place. He was restrained by the Excise Officers and the big shopper bags possessed by him were examined. He was possessing ten bottles, a piece containing 750 ml. of Rum (IMFL) in each big shopper. The prosecution case, spoken to by PW 1, is that he was physically possessing 20 bottles of IMFL. When he was questioned, information could be elicited that he secreted liquor in a nearby channel. As informed by the accused, the detecting officer and party went to the nearby channel and found out20 bottles of IMFL, each containing 375 ml. and 70 bottles of IMFL, each containing 180 ml. hidden under dry leaves in the channel. PW1 would depose that altogether 35 litres of IMFL was in the possession of the accused. Each bottle contained label as “New Master XXX Rum, Blended and Bottled in the Excise Bonded Ware House by National Distilleries and Allied Products, Bangalore.”. PW 1 would state that the bottles did not contain any label to show that the liquor was authorized to be sold in the State of Kerala. PW 1 many a times in his cross-examination testified that the accused was found in possession of illicit liquor. For possessing excessive quantity of unauthorized liquor, he was arrested. Samples were drawn separately from each set of bottles and they were sealed and labeled. They were marked as ‘A, B and C’. Signatures of PW1 and the accused were affixed on the label. Thereafter, the contraband articles and the accused were taken to the Excise Office and the case was registered. The seizure mahazar prepared by PW 1 from the place of detection is marked as Ext. P 1. It is the definite prosecution case that in Ext. P1 seizure mahazar, PW 1 and witnesses put signature. Ext. P2 is the arrest memo. It contains the signature of PW 1, the accused and the witnesses. Ext. P3 is the arrest notice. Wife of the accused signed on Ext. P3. Crime and occurrence report proved through P W1 is Ext. P4. PW 1 proved Ext. P5, the property list. On 21.04.1998, the accused was produced before court with a remand report (Ext. P6). The samples produced before the court were sent to chemical examiner's laboratory for analysis and Ext. P7 is the report issued from the laboratory in this regard. PW 1 himself conducted the investigation and a final report was filed. At the time of evidence, PW 1 identified the material objects and the accused from the court.

10. PW 1 was subjected to cross-examination. He answered to a query that there were complaints against the accused that he was a habitual illicit liquor dealer and the complaints were not produced before the court because of the confidential nature of the same. Even though searching questions were put to him regarding the formalities of detection, search and seizure, the testimony of PW1 remains credible. PW1 answered during cross-examination that the accused was aware of the place where the bottles were concealed. It was camouflaged by using dry leaves. The case of false implication put forward by the accused had been stoutly denied by PW1.

11. PW2 is an independent witness. The prosecution wanted this witness to speak about the detection, search and seizure. He refused to support the prosecution. He admitted that Exts. Pl and P2 contained his signatures. Interestingly, this witness has no explanation as to how he happened to put signature on the seizure mahazar. PW3 is yet another independent witness, who also turned hostile to the prosecution case. He also admitted his signature on Ext. P 1.

12. PW4 was the Preventive Officer in the Irinjalakuda Excise Range. He was a member in the patrolling party led by PW1. He testified in complete harmony with the evidence of PW 1. He proved the detection, search and seizure of the contraband from the accused. PW4 also stated that as pointed out by the accused, large quantity of liquor was recovered from a water channel slightly away from the place of detection. The liquor bottles were hidden in the channel beneath dry leaves. In spite of cross-examination, the testimony of this witness remains credible. The recitals in Ext. P 1 seizure mahazar, Ext. P2 arrest memo, Ext. P3 arrest notice and Ext. P4 crime and occurrence report also reinforce the prosecution case to a great extent It is established that these documents were prepared contemporaneous to the detection. Ext. P5 is the property list (list of thondy articles). That was produced before the court on 21.04.1998, ie., the next day of detection and arrest of the accused. There is no delay in reporting to the court about the search and seizure of the contraband. Ext. P6 remand report was also produced before court on the next day. Ext. P7 chemical analysis report shows that the requisition for forwarding the contraband for analysis was given on 21.04.1998 itself. The samples taken and marked as A, B and C were separately analysed and found to be containing approximately 41 % ethyl alcohol. Oral evidence adduced as well as the documents prepared contemporaneous to the detection and produced and proved at the time of trial would clearly show that the accused possessed large quantity of liquor on the alleged day and he was apprehended for violating the law.

13. The question raised by the learned counsel for the accused, despite these materials on record, is that the accused cannot be legally held liable either under S. 55(i) or S. 58 of the Act. Now, I shall examine the contentions separately.

14. I shall extract the relevant portion S. 55(i) of the Act:

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

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(i) Selis or stores for sales liquor or any intoxicating drug;

shall be punished.- (1) for any offence other than an offence falling 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.”

15. Learned counsel for the accused would contend that in order to attract S. 55(i) of the Act, it must be established that the accused was either indulging in sale of liquor or he stored liquor for the purpose of sale. It is forcefully contended for the accused that even if we accept the prosecution case in toto, there is no allegation against the accused that either he was engaged in sale of liquor at the time of detection or he stored liquor for the purpose of sale. Learned Prosecutor opposed this argument by contending that the accused has no explanation for possessing more than 35 litres of unauthorised liquor. Furthermore, the prosecution has a definite case that there were lots of complaints against the accused that he was a habitual boot-legger. However, the prosecution has not produced any complaint to fortify this contention. But, PW 1 has emphatically alleged so and the same was not effectively controverted in the cross-examination.

16. On a reading of the above mentioned provision, it can be seen that it speaks about sale of liquor and storage of the same for sale. It is to be noted that we are concerned only with liquor and not with any intoxicating drug. The word ‘liquor’ is defined in S. 3(10) of the Act in the following lines:

“(10) Liquor:- “Liquor” includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol.”

17. It is established beyond any pale of doubt that the contraband recovered from the possession of the accused squarely fell within the definition of “liquor” quoted above.

18. Argument advanced by the learned counsel for the accused is that for booking a person for the first limb of S. 55(i) of the Act (ie., for sale of liquor), it must be established that the detecting officer saw the accused actually selling the liquor. Learned counsel for the accused argued that the word ‘sells’ used in the statute in present tense assumes great importance. According to the accused, it indicates that the sale should be one happening at the time of detection. In other words, a person cannot be arrested alleging that he sold liquor at an earlier point of time. It is the contention of the accused that use of present tense in the provision is indicative of the fact that a person can be arrested only when he is found to be engaged in sale of liquor. This argument is opposed by the learned Prosecutor by contending that it is not the law that the accused could be arrested only when he is found selling the liquor. He can be booked for the offence under S. 55(i) of the Act, if he possessed liquor for sale. If we consider the two aspects dealt with in S. 55(i) of the Act, it is evident that both sale of liquor and storage of the same for the purpose of sale are made punishable. I am of the view that the word ‘sells’ in S. 55(i) of the Act is used by the legislature with a definite purpose. What is sought to be prevented by the provision is illicit sale of liquor. It is axiomatic that the legislature may not use any word or expression without ascribing a meaning to it or without intenting any result or effect unless the subject or context clearly indicate otherwise. Here, it is evident that the legislature wanted to make unauthorised sale of liquor an offence. The expression “sells” in S. 55(i) of the Act can only be viewed as a sale in presenti and not a past sale. In otherwords, what is to be detected for making out an offence is actual sale of liquor or all preparedness for a sale of liquor. It is futile to contend that the offence is revealed only when the detecting officer saw the accused pouring liquor from a bottle to a tumbler and another person receiving the same for consideration. Allegations and proof by the prosecution to that extent need not be insisted. In my opinion, going by the expression ‘sells’ in S. 55(i) of the Act, the offence can lawfully be inferred, if the facts and circumstances alleged and proved in a particular case would lead to the irresistible inference, that the accused possessed liquor, even if it is for a prospective sale. Finding the accused with illicit liquor and in full preparedness for sale of it, like holding a tumbler for the use of customers, possessing cash received as sale proceeds, etc. are some indications to presume that the accused is engaged in sale of liquor. This illustration shall not be taken as exhaustive. There can be umpteen situations in which it can lawfully be deduced that the accused possessed liquor for effecting a prospective sale. The only requirement is thatthe prosecution should allege and prove facts and circumstances to indicate that the accused intended an illicit sale of liquor.

19. In this case, the prosecution would contend that the accused was found possessing unauthorised liquor and he was intercepted. He is guilty of storing as well, because large quantity of liquor was detected from the place pointed out by him, contended the learned Prosecutor. Prosecution has a further case that recovery of contraband effected from a place pointed out by the accused after his arrest would tantamount to one under S. 27 of the Evidence Act. I shall deal with that contention later.

20. Evidence adduced by the prosecution will not establish that the accused was engaged in sale of liquor. No definite allegation is raised by the prosecution that the accused was carrying it to a destination for a future sale. The recitals in Ext. P1 mahazar and the testimony of material prosecution witnesses would only indicate that he was carrying the liquor in two big shopper bags, virtually leading to an irresistible legal inference that he was possessing it.

21. Next allegation against the accused is regarding storage of liquor for sale. Recovery of large quantity of IMFL as per the disclosure made by the accused while in custody cannot be legally used against him under S. 27 of the Evidence Act as there are certain legal infirmities attached to the proof of that case. I shall elaborate those aspects later in this judgment. S. 50(2) of the Act would show that as soon as investigation into the offences under the Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a Police report, a report in accordance with S. 173(2) Cr.P.C S. 25 of the Evidence Act says that no confession made to a Police Officer shall be proved as against a person accused of any offence. In various decisions, it has been held by the Apex Court that a particular officer is a Police Officer or not can be determined with reference to his power to conduct investigation and to file a final report. It is not the garb which an officer puts on, but it is the nature of power he possesses that may be decisive to answer a question whether such officer is a Police Officer or not. One of the main features judicially recognized to identify an officer as Police Officer is the exclusive authority of that officer to file a final report under S. 173(2) Cr.P.C Two Benches consisting of five Honourable Judges of the Supreme Court in Badaku Joti Svant v. State Of Mysore (AIR 1966 SC 1746) and Ramesh Chandra Mehta v. State of West Bengal (1968 KLT SN 25 (C. No. 49) SC; AIR 1970 SC 940) considered these aspects and held that a Central Excise Officer, having no power to submit a charge sheet under S. 173 Cr.P.C, cannot be designated as Police Officer and statement made by an accused to such Officer would not be hit by S. 25 of the Evidence Act. All these decisions have been elaborately considered by a learned Single Judge of this Court in Joseph v. State of Kerala (2009 (4) KHC 537).

22. The question as to whether an Abkari Officer defined under the Act could be treated as a Police Officer, so that prohibition in S. 25 of the Evidence Act would be attracted in the matter of confession made by an accused to him, was also considered by the learned Single Judge in Joseph's case (supra). Considering the provisions in S. 25 of the Evidence Act and S. 50 of the Act, it was held that every Abkari Officer filing a charge sheet will have to be treated as Police Officer and confession made by an accused to him would be inadmissible in evidence. All the decisions relevant in in context have been catalogued in Joseph's case (supra). For the above reason, the embargo in S. 25 of the Evidence Act gets attracted in the case of an Abkari Officer too, who is authorised to file a final report by virtue of the above provision. Hence, the statement in Ext. Pl seizure mahazar that the accused while in custody made a confession and on the basis of that confession large quantity of liquor was recovered from the place of concealment can be proved, if at all, only in terms of S. 27 of the Evidence Act.

23. For convenience and clarity, S. 27 of the Evidence Act is quoted below:

“How much of information received from accused may be proved.— Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

24. The prosecution, if wanted to avail the benefit of the above provision, should prove that the accused was in the custody of a Police Officer (in this case, the Abkari Officer). Where one person is or is not in Police custody could be discerned from the facts and circumstances obtaining in each case. It is trite law that there need not be an arrest of the accused to infer that he was in Police custody when he made the confession, which led to the discovery of a fact. The word ‘custody’ in S. 27 of the Evidence Act does not mean physical custody by arrest. In State Of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 SC 1125) it was held that when a person, not in custody, approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police and may be deemed to be in the “custody” of police officer within the meaning of S. 27 of the Evidence Act. So, going by the facts, the accused in this case should be treated as confessed, while in custody, about the concealment of the contraband in a water channel camouflaged by dry leaves. But, there are serious irregularities in the manner of recording the alleged confession to be used in S. 27 of the Evidence Act and the manner of proving the confession.

25. I may quote a passage directly from the seminal work by Sir James Fitzjames Stephen, Q.C, the draftsman of Indian Evidence Act, entitled “An introduction to the Indian Evidence Act”. It reads as follows:

“Admissions in reference to crimes are usually called confessions. I may observe upon the provisions relating to them that Ss. 25, 26 and 27 were transferred to the Evidence verbatim from the Code of Criminal Procedure, Act XXV of 1861. They differ widely from the law of England, and were inserted in the Act of 1861 in order to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody.”

26. The purpose of incorporating S. 25 of the Evidence Act, creating an embargo in proving a confession by an accused to a Police Officer and providing an exception to that rule in S. 27 of the Evidence Act can be discerned from the above passage.

27. Right from Pulukuri Kotayya v. Emperor (AIR 1947 PC 67) it has been consistently held that the expression “whether it amounts to a confession or not” has been used in order to emphasise the position that even though it may amount to a confession, that much of information, as it relates distinctly to the fact thereby discovered, can be proved against the accused. Furthermore, the Section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly, can be safely allowed to be given in evidence, ft is now too well settled that recovery of an object is not the discovery of fact envisaged in the Section. In Pulukuri Kotayya's case (supra), the term “fact discovered” has been interpreted that they embrace the place from which the object was discovered, the knowledge of the accused as to it; but the information given must relate distinctly to that fact. It can succinctly be stated that the authorship of concealment is the relevant fact. Subsequent decisions of the Supreme Court also reiterate the same principle of law.

28. Learned author, C.D Field on Law of Evidence (13th Edition) states the procedure in the matter of recording and proving information leading to discovery in the following words;

“Procedure in the matter of recording and proving information. The manner of recording and proving information given by the accused leading to the discovery of fact or facts has been the subject-matter of comment in some cases and it would be proper and useful, to briefly indicate the procedure which should be adopted in the matter of recording and proving information as referred in Sec. 27 of the Evidence Act.

(1) Whenever police officer is intimated that the accused proposes to give information leading to discovery he should proceed to record it as far as possible in the language spoken by the accused and in the first person.

(2) Although as a matter of law the presence of motbir witnesses at the time of recording information is not necessaiy but as a matter of prudence the police officer should secure the presence of motbir witnesses, if such witnesses are available without much inconvenience or difficulty.

(3) As regards the proving of such information, ordinarily the police officer or motbir witness should state in Court from memory what information was given by the accused and if such a witness is in a position to give the precise information he should do so without referring to the written memo-containing the information.

(4) If the police officer or the motbir witness on account of lapse of time or otherwise, is not in a position to state with the help of memory what the information was thus makes out a case for referring to the memo, for refreshing his memory, he is entitled to do so. But, even then he should not merely remain content by proving his signatures on the information memo, but should reproduce in Court the information given.”

29. In this case, the detecting officer did not record the alleged confession of the accused properly and he failed to prove the same in the manner required by law. None of the prosecution witnesses testified properly about discovery of a relevant fact (ie. recovery of the contraband at the instance of the accused after his arrest). At the time of evidence, the alleged confession was not sought to be proved through the detecting officer or through any of the witnesses to Ext. P 1. Therefore, the contention of the learned counsel for the accused that the confession allegedly made by the accused, while in custody, regarding concealment of large quantity of liquor in a water channel, cannot be used against him. So much so, the prosecution failed in establishing that the accused stored large quantity of liquor for the purpose of sale. It is true that if one eschews this prosecution evidence, then there is nothing remaining to show that the accused himself stored the liquor for sale. His knowledge about the place of concealment of liquor, if at al 1 established, is insufficient to apply the law in S. 27 of the Evidence Act in the absence of proof of authorship of concealment. Net result of the reasoning is that the prosecution failed to establish the second limb of S. 55(i) of the Act. Hence, none of the limbs of S. 55(i) of the Act, viz., the accused was found selling the liquor or he stored the liquor for the purpose of sale, could be established by evidence adduced by the prosecution. Hence the conviction of the accused under S. 55(i) of the Act is not legally sustainable.

30. Now we shall consider the legality of conviction under Section 58 of the Act. S. 58 of the Act reads as follows:

“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 therefore, shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.”

31. If one analyses this Section, it can be seen that certain aspects are to be satisfied for completion of the offence. They are:—

(i) The accused should be in possession of any quantity of liquor or any intoxicating drug.

(ii) His possession is without any lawful authority.

(iii) He knows the same to have been unlawfully imported, transported or manufactured, or

(iv) He knows the duty, tax or rental payable under the Act not to have been paid therefor.

32. If out of these ingredients, either (iii) or (iv) is established, then the accused shall be punished for the offence under the Section.

33. Learned counsel for the accused contended that the prosecution has not even alleged the basic ingredients to constitute the offence under S. 58 of the Act. The learned Prosecutor refuted this argument by referring to the averments in Exts. P1 to P4, viz., seizure mahazar, arrest memo, arrest notice and crime and occurrence report. Learned Prosecutor draws support from the testimony of PWs. 1 and 4. Ext. P 1 seizure mahazar shows a definite recital that the accused was found carrying two big shopper bags and each bag contained ten bottles of 750 ml. IMFL. It is mentioned in Ext. P 1 that the bottles were of the same brand and they had inscriptions indicating the nature of the liquor and the name of the distillery. It was manufactured in Bangalore. The Kerala Foreign Liquor (Compounding, Blending and Bottling) Rules, 1975 contains the provisions regarding compounding, blending and bottling of foreign liquor. Rule 10 deals with bottling. Sub-rule (6) of Rule 10 shows that the label on the bottle should contain particulars like brand or description of the liquor with quantity or strength, country of origin of the principal constituent of liquor, name of bottler and the name of the place where it is bottled, batch number, etc. It further shows that there must be warning in English and Malayalam that ‘alcohol consumption is injurious to health’. Absence of all these stipulations on the bottle was so conspicuous. Sub-rule (7) of Rule 10 says that the labels to be used in the bottles shall be approved by the Commissioner. In Ext. P 1 seizure mahazar, it has been specifically mentioned that there was no label seen on any of the bottles recovered from the possession of the accused. These aspects have been categorically proved by the prosecution. There are sufficient indications in the documents and the oral evidence let in by the prosecution to show that the accused was aware of the fact that the liquor was unlawfully imported and transported. PWs. 1 and 4 testified that when they sighted the accused and approached him, he tried to get away. It also indicates the culpable state of mind of the accused. Whether a person knows a fact or not cannot be proved by direct evidence. It can be deduced or inferred from the attending facts and circumstances. When the accused carrying liquor in two big shopper bags comes face to face with the Excise Officers, he attempts to retreat from the place is an indication that he was fully aware of the fact that the liquor was unlawfully imported or transported in violation of the provisions of the Act. Therefore, the requirements in S. 58 of the Act have been established by the prosecution evidence.

34. Another contention raised by the learned counsel is regarding the nonapplicability of S. 64 of the Act. S. 64 of the Act reads as follows:

“Presumption as to commission of offence in certain cases: In prosecutions under S. 55, S. 55B, S. 56A, S. 57, S. 58, S. 58A and S. 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a licence or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under S. 8 or S. 55 or S. 55B or S. 56 or 56A or S. 57 or S. 58 or S. 58A or S. 58B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence;”

35. Notwithstanding that S. 64 of the Act takes in presumptions covering various Sections, in this case I need only deal with S. 58 of the Act. If I were to simplify the Section and read it, it can be seen that in a prosecution under S. 58 of the Act, it shall be presumed, until the contrary is proved, that the accused person has committed an offence under the Section in respect of any liquor, of the possession of which he is unable to account satisfactorily. Latter part of the Section is not relevant for our purpose because it deals with the presumption to be drawn against the holder of a licence or permit for the breach of his employee or anyone acting on his behalf. So, the law mandates that the court shall presume certain things against the accused, if certain basic aspects are proved by the prosecution. Learned counsel for the accused contended that the prosecution cannot start with a presumption and take rest under the umbrella of presumption for claiming conviction. This contention is indisputable. In general, apresumption is nothing, but a rule of procedure used to supply want of facts and its only effect is to cast burden on opposite party of going forward with proof. Presumptions give way to reality when facts opposing presumptions are presented. Further, presumptions are rules of convenience based on experience and public policy and established to facilitate the ascertainment of truth in the trial of a case. The presumption in S. 64 of the Act is a rule, which the law makes upon a given state of facts. Halsbury's Laws of England, 5th Edition, Volume 28, page 35 deals with the classification of presumptions of law. It reads as follows:

“Classification of presumptions of law. Presumptions of law which are rules of substantive law rather than rules of evidence generally may be classified as: (1) conclusive and irrebuttable presumptions of law; (2) rebuttable presumptions of law, by Which if a basic fact is proved or admitted, a further fact must then be presumed, either until the contrary is proved, or (in the case of ‘evidential’ presumptions) until some admissible evidence to the contrary is adduced; and (3) so-called presumptions of fact which are merely permissible circumstantial inferences of fact, having no special significance in law.

The general rule that the prosecution must prove the guilt of the defendant of the offence charged is frequently expressed in terms of a ‘presumption of innocence’, and the rule that the defendant bears the burden of establishing a defence of insanity is sometimes termed the ‘presumption of sanity’, but in such cases the language of presumption is merely a convenient way of describing the allocation of the persuasive burden of proof.”

36. Presumption embodied in S. 64 of the Act is a rebuttable presumption of law. The accused can get out of the clutches of presumption, if he either establishes facts in his favour so that the presumption of guilt could not be drawn against him or if he is able to cull out materials from the prosecution evidence to establish that the presumption could not be drawn because of the highly improbable nature of evidence adduced by the prosecution.

37. In this case, the prosecution could successfully establish that the accused was found possessing large quantity of liquor. The established facts and circumstances indicate that he was aware of the fact that it was illicit liquor. Therefore, the ingredients of S. 58 of the Act proved in this case read with S. 64 of the Act would point a finger to the guilt of the accused.

38. Finally, it was argued by the learned counsel for the accused that the charge framed by the trial judge is not proper and it does not indicate the necessary requirements to attract S. 58 of the Act. S. 464 of Cr.P.C makes it clear that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal such irregularity caused failure of justice. Learned Prosecutor relied on the decision in Biju v. State of Kerala (2012 (4) KLJ 256). The fact that there are certain inaccuracies in the charge framed by the Trial Court will not ipso facto absolve the accused since he participated in a full-fledged trial, being fully aware of the facts, and there is no reason to find that he suffered any prejudice or there was any failure of justice. Therefore, I find no force in this contention also.

39. To recapitulate the points, I find the conviction of the accused under S. 55(i) of the Act is not legally sustainable for the reasons mentioned above. However, the conviction of the accused under S. 58 of the Act is legal and proper. Hence the following decision. In the result, the appeal is partly allowed. Conviction of the accused under S. 55(i) of the Abkari Act is hereby set aside and he is acquitted of that charge. Conviction of the accused under S. 58 of the Act is confirmed. Considering the fact that the court below has imposed a proper and reasonable sentence on the accused, I find no reason to interfere with the sentence under S. 58 of the Act. Appeal is disposed accordingly.

40. All pending interlocutory applications will stand dismissed.