ORDER
This revision is directed against the concurrent verdict of conviction entered in a case alleging commission of offence punishable under section 55(i) of Abkari Act. The case was stated to have been detected on 24.10.1996 at 11.00 a.m It is alleged that the petitioner was carrying a jerry can of 5 litre capacity containing in it 5 litre of illicit arrack. Relying on the evidence given by the detecting officer and other records, the trial court found that the petitioner committed offence punishable under section 55(i) of Abkari Act. The appellate Court, after re-appreciation of the evidence, concurred with that finding.
2. The petitioner was sentenced to pay a fine of Rs. 25,000/- and in default to undergo simple imprisonment for three months. The learned counsel for the petitioner submits that conviction under section 55(i) of Abkari Act cannot be sustained at all, since even according to the prosecution the petitioner was found to be carrying or possessing 5 litres of illicit liquor and there is no evidence to show that the petitioner was found selling illicit liquor. Hence, according to the learned counsel, the conviction under section 55(i) of Abkari Act cannot be sustained.
3. In support of that submission, the learned counsel has relied upon the decision of the Division Bench of this Court in Surendran v. Excise Inspector 2004 (1) KLT 404 where it was held that possession of illicit liquor would attract only offence under section 58 of Abkari Act and not section 55(i) of Abkari Act. It is also argued by the learned counsel that prosecution has not adduced any evidence to show that the petitioner was aware of the fact that the liquid carried by him was illicit liquor. But that argument cannot be sustained in view of the presumption under section 64 of Abkari Act.
4. If the offence under section 55(i) of Abkari Act is not attracted, then the other question would be whether section 55(a) of Abkari Act will be attracted. In view of the fact that possession of the same was not proved to be in the course of import, transport or transit, the offence under section 55(a) will not be attracted. Then the next question would be whether, for the possession of illicit liquor, the petitioner can be found guilty of the offence under section 58 of Abkari Act. The learned counsel submits that since charge was only under section 55(i) of Abkari Act and as there was no charge under section 58 of Abkari Act, the petitioner cannot be now convicted of the offence under section 58 of Abkari Act. Then the next question is whether section 58 of Abkari Act, as it stood on 24.10.1996, was a minor cognate offence. Since the ingredients to attract offence under section 58 is different from the ingredients of the offence under section 55(i), it cannot be said that section 58 is a cognate minor offence of section 55(i) of Abkari Act, the learned counsel submits. The charge was only under section 55(i) of Abkari Act and not under section 55(a) of Abkari Act. Therefore without altering the charge, conviction cannot be altered to one under section 58 of Abkari Act. If so, conviction and sentence passed against the petitioner cannot be sustained. The incident took place in the year 1996.
5. In the result this revision petition is allowed. Conviction and sentence passed against the petitioner are set aside. The petitioner is set at liberty. The bail bond executed by him will stand cancelled. The fine amount, if any, deposited by the petitioner shall be refunded to the petitioner.
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