The accused in C.C.No.14 of 1993 of the Judicial First Class Magistrate Court, ' Kuthuparamba, who was also the appellant in Crl.A.No. 3 of 1994 of the Sessions Court, Thalasscrry, is the petitioner. He had been concurrently found guilty under S.55(a) of the Abkari Act, convicted and sentenced to undergo R.1. for six months and to pay a fine of Rs.1,000/- in default to R.I. for six months.

2. The allegation against him was that on 29-7-92 at 4.45 p.m. PW.1, the Assistant Excise Inspector, Mattannur Range and party found him in possession of 3 litres of indigenously manufactured arrack for illicit sale. Indeed apprehension and seizure of illicit arrack from his possession were not seriously disputed, quite rightly in view of the acceptable oral and documentary evidence against him. But then it was contended that on the evidence and documents the conviction under S.55(a ) was illegal, that the offence disclosed was under S.58 and that in the particular facts and circumstances a custodial sentence was unwarranted and that fine will be adequate.

3. I heard counsel for the petitioner and the Additional Director General of Prosecutions.

4. There is indeed sonic confusion as to t