ORDER
The petitioner was concurrently found guilty and convicted for the offence punishable under Sec.58 of Abkari Act and she was sentenced to S.I for three months. This revision is directed against the said conviction and sentence.
2. The case was detected on 17.07.1996 at about 5.15PM PW1 the Preventive Officer and PW2 the Excise Guard were on patrol duty. When they reached the place of incident, the accused was found carrying a plastic can of a capacity of 2= litres, which contained in it about one liter of illicit arrack. It was confirmed by its taste and smell. A sample of 180ml was taken in a separate bottle. It was sealed. The can containing the residue was also sealed. The labels containing the signatures of the accused and of the witnesses were affixed on the sample bottle and on the plastic can. The accused was arrested. The properties were produced before the court on 19.07.1996 The report of the chemical examiner shows that the liquor contained only 22.27 per cent by volume of ethyl alcohol. Hence, the courts below found that the petitioner committed the offence under Sec.58 of Abkari Act.
3. Sri. Arun Mathew Vadakan, the learned counsel appearing for the accused/revision petitioner submits that the courts below should not have relied upon the evidence of PW1 and PW2 to find the petitioner guilty. There is no legal evidence to find who took the sample. But that contention cannot be acceptable since PW1 and PW2 who deposed in line with the entries mentioned in Ext.P1 would show that the sample was taken then and there and it was produced along with the FIR and other records. Ext.P4, the property list would also show that the properties reached the court on 19.07.1996 itself. The evidence given by PW1 and PW2 would show that the plastic can containing about one liter of alcohol was seized from the possession of the accused.
4. The detection was prior to 03.06.1997 The charge laid against the accused was under Sec.58 of Abkari Act. As on that date, the presumption under Sec.64 of the Abkari Act was not available to the prosecution when the charge was under Sec.58 of Abkari Act, it is argued. Hence, the learned counsel submits that there is no legal evidence to show that she was keeping possession of liquor knowing it to be illicit liquor or that it was illegally imported or manufactured. If so, according to the learned counsel, the possession of one liter as it stood then would only attract the offence punishable under Sec.63 of the Abkari Act since the quantity possessed was more than 750 ml. I find that there is force in that submission. Hence, the conviction is to be altered to one under Sec.63 of Abkari Act.
5. In the result, this criminal revision petition is disposed of as stated below:
The conviction and sentence passed against the petitioner for the offence under Sec.58 of Abkari Act are set aside. Instead, the petitioner is found guilty and convicted for the offence punishable under Sec.63 of the Abkari Act and she is sentenced to pay Rs. 2,000/- (Rupees two thousand only) as fine and in default of payment of the same, the petitioner will undergo S.I for one month. Petitioner will remit the fine amount within one month from today.
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