In this appeal preferred from the Central prison, Kannur, the appellant, namely, Paravan who was the sole accused in S.C.No.110/2004 on the file of the Addl. Sessions Court (Fast Track No.I), Manjeri challenges the conviction entered and the sentence passed against him for an offence punishable under sec. 55(g) of the Abkari Act.

2. The case of the prosecution is that on 30.8.2002 at about 8.25 a.m. the accused was found in prosecution of 20 litres of wash kept in two plastic post, each of 10 litres capacity, and utensils for the purpose of manufacturing illicit arrack and two empty bottles having the smell of arrack, at Vettilappara within the limits of the Manjeri Excise Range. The accused has, thereby, committed an offence punishable under sec.55(g) of the Abkari Act.

3. On the accused pleading not guilty to the charge framed against him by the court below for offences punishable under sec.8(1) and 8(2) read with sec.55(g) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 7 witnesses as PWs.1 to 7 and got marked 11 documents as Exts.P1 to P11 and 5 material objects consisting of two plastic jars, two empty bottles and one aluminium pot with a hole, marked as M.O.1 series.

4. After the close of the prosecution evidence the accused was questioned under sec.313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. Since the court below did not consider this a fit case for recording an acquittal under sec.232 Cr.P.C., the accused was called upon to enter on his defence. He did not adduce any defence evidence.

5. The learned Additional Sessions Judge, after trial, as per judgment dt 2.7.2005 found the appellant guilty of the offence punishable under sec.55(g) of the Abkari Act and sentenced him 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 simple imprisonment for one year. It is the said judgment which is assailed in this appeal.

6. I heard Adv. Sri. Latheesh Sebastian, the learned counsel who defended the appellant on State Brief, and Adv. Sri. Sivakumar, the learned Public Prosecutor who defended the State.

7. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not?

THE POINT

8. PW.1 was the Excise Inspector, Manjeri, who detected offence. Exts.P1 to P5 and M.O.1 series were got marked through him. PW.2 was the Excise Preventive Officer who was in the patrol party of PW.1. He also deposed in terms of the prosecution case. PWs.3 and 4 are the independent witnesses who figured as attestors to Ext.P2 mahazar and Ext.P4 arrest memo. However, both of them turned hostile to the prosecution. PW.5 was the Excise Inspector who registered Ext.P6 occurrence report and conducted the investigation. During the course of investigation he produced the properties on the next day as evidences by Ext.P7 property list. He also filed Ext.P8 forwarding note requesting the despatch of the samples to the chemical examiner for analysis. PW.6 was the Village Officer who proved Ext.P9 scene plan. PW.7 was the Excise Inspector who laid the charge. Ext.P10 chemical examination report was marked through him.

9. The learned counsel appearing for the appellant made the following submissions before me in support of his fervent plea for acquittal of the accused:-

The contraband liquor was admittedly seized from an unnumbered thatched shed at Vettilappara. There is nothing to show that the appellant is the owner of the said shed. When the case of the prosecution is that the appellant had stored the contraband liquor for the purpose of distilling arrack, it was obligatory for the prosecution to prove that the appellant was the owner of the shed where the contraband liquo