V. Ramkumar, J.

The 2nd accused in S.C.No.1969/2002 on the file of the Court of the IIIrd Addl. Sessions Judge, Kollam challenges the conviction entered and the sentence passed against him by that court for offences punishable under Ss.55(a) and 55(i) of the Abkari Act.

2. The case of the prosecution can be summarized as follows:-

On 24.12.1999 at 5.30 p.m. a police party from Kottiyam Police Station headed by the Sub Inspector PW.4 while on patrol duty found both accused Nos.1 and 2 at the residential property of the 1st accused situated near Kayavil culvert in Akkolil cheri of Mayyanadu village. The police party found the 1st accused holding a glass and the 2nd accused holding a plastic kit containing 35 covers, each containing 100 ml. of illicit arrack. The accused has thereby committed offences punishable under Ss.55(a) and 55(i) of the Abkari Act.

3. On the accused pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to ad-duce evidence in support of its case. The prosecution altogether examined 5 wit­nesses as PWs.1 to 5 and got marked 5 documents as Exts.P1 to P5 and 4 material objects as M.Os.1 to 4.

4. After the, close of the prosecution evidence the accused were questioned un­der S.313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and main­tained their innocence. The appellant had the following to submit before court:-

For the past 10-15 years he was a domestic servant in the house of the 1st accused's mother. While he was working there, there was an altercation and scuffle between the 1st accused and his wife. The wife of the 1st accused left his house after taking the 11/2 year old child. Thereupon the 1st accused snatched the child and ran away. The whereabouts of the 1st accused were not heard of and he was in the hiding. While so, the mother-in-law of the 1st accused lodged a complaint against the 1st accused before the police. After three days while he was standing in the Mayyanadu bus stand, the mother-in-law of the 1st accused and two police constables came in an autorickshaw. The 1st accused's mother-in-law told the policemen that this accused, if taken into custody, could reveal the whereabouts of the 1st accused. He was thus taken in an autorickshaw. He revealed to the police that he does not know the whereabouts of the 1st accused or his child. The police told him that he will be released from custody only if he showed the 1st accused and his child. After three days he was produced before court. Thereafter he was in jail. It was only after 14 days he realized that he was falsely implicated in an abkari case. His wife and children were unaware of his whereabouts until then. He wrote a letter to his wife from the prison and she came and got him enlarged on bail. He has absolutely no connection with this abkari case. After the above incident there was no re-union between the 1st accused and his wife. The 1st accused has married another lady and he is residing with her. This accused is innocent.

5. Since the court below did not think it fit to record an order of acquittal under S.232 Cr.P.C., the accused were called upon to enter on their defence and to adduce any evidence which they might have in support thereof. They did not adduce any defence evidence. The learned Sessions judge, after trial, as per judgment dt.31.7.2004 acquitted the 1st accused but convicted the appellant/the 2nd accused for the offence punishable under S.55(a) of the Abkari Act. He was, however, acquitted of the offence punishable under S.55(i) of the Abkari Act. For his conviction under S.55(a) of the Abkari Act, the appellant was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh and on default to pay the fine, to undergo rigorous imprisonment for another ten months. It is the said judgment which is assai