[CR]

The challenge is against the conviction and sentence imposed vide judgment dated 21.11.1997 in S.C.No.194/1997 on the files of the Sessions Court, Kottayam. The appellant, who is arrayed as the second accused being the licensee of a toddy shop, faced trial along with the first accused, who allegedly the employee of the said toddy shop, for the offences punishable under Sections 8(1) and (2) of the Kerala Abkari Act. But the appellant alone was convicted and punished under the above provision, whereas the first accused is acquitted. Hence, this appeal is at the instance of the second accused in the above Sessions Case.

2. Though this appeal pertains to the year 2007, this Court, by order dated 25.02.2010 in Crl.M.A.No.1894/2010 preferred by the appellant, directed the Registry of this Court to post the appeal for hearing, as the appellant is suffering from serious ailment namely, locally advanced Carcinoma Tongue Post Chemo and thus this appeal has come up for hearing out of turn.

3. The prosecution case is that on 19.10.2006 at about 6.50 p.m, in the toddy shop No.51/2006 of which the second accused is the licensee housed in the building bearing door No.V.P I/406 of Vellavoor Panchayath, the accused were found keeping 2 litres of arrack and 5 = litres of spirit for the purpose of sale and thereby committed the offences punishable under Sections 8(1), (2) and Section 55(a) and (i) of the Kerala Abkari Act.

4. According to the prosecution, in pursuance of the general direction issued from the Excise Department, PW3 conducted a raid in Toddy shop No.51/2006-2007 at Kulathoormuzhi on 19.10.2006 at about 6.15 p.m. and seized the illicit arrack and spirit mentioned above, which were kept beneath a desk in the kitchen room of the toddy shop and also found Rs.3,710/- in the drawer of the desk. According to the prosecution, samples were drawn from the contraband article detected and the remaining substance were seized. It is the further case of the prosecution that PW3 obtained the signatures of the witnesses and that of the first accused, who were present in the toddy shop at the time of search. Thus, the specific allegation of the prosecution is that the first accused was the then Manager, engaged in the sale of toddy in the said toddy shop of which the appellant is the licensee and he was found in possession of the contraband article. On the basis of the above allegations, Crime.No.15/2006 was registered in the Excise Range, Changanacherry for the offences punishable under Section 8(1) and (2) and Section 55(a) and (i) of the Kerala Abkari Act, and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court, Changanacherry, and the case was taken as C.P. No.16/2007 and by order dated 28.7.2007 therein, the learned Magistrate committed the case to the Sessions Court wherein S.C.No.194/2007 was instituted and subsequently the case was made over to the trial court for disposal.

5. On the appearance of the accused, after hearing the prosecution as well as the defence, the court framed a formal charge against both the accused, under Sections 8 (1) and (2) of the Kerala Abkari Act and according to the court, the prosecution materials were not sufficient to frame charge against the accused under Sections 55(a) and (i) of the Abkari Act. Thus the charge so framed was read over and explained to the accused and they denied the same and pleaded not guilty, which resulted in the further trial of the case, during which the prosecution adduced its evidence consists of oral testimony of PWs. 1 to 11 and the documentary evidence such as Ext.P1 to P11. Ext.X1 is marked as court exhibit and MO1 to MO4 were identified and marked as material objects. From the side of the defence DWs. 1 and 2 were examined and Exts. D1 and D2 were produced. The incriminating circumstances and the evidence, which emerged during the prosecution evidence were put to the accused under Section 313 of Cr.P.C and they denied