1. The accused in Sessions Case No.246 of 2002 of the Additional Sessions Court (Adhoc-II), Kozhikode who stands convicted under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for 1= years and to pay fine of 1,00,000/-, in default, to undergo rigorous imprisonment for six months, has come up in appeal.

2. On getting reliable information that illicit arrack was being kept by the appellant in his possession at his house, PW1, Preventive Officer of the Quilandy Excise Range and party searched the house of the appellant at 1.00 p.m. on 15.10.1997. The appellant was present at the house. In the search, MO1 Can containing 1= litres of arrack was seized from the kitchen of the house. The appellant was placed under arrest. Samples were drawn. On reaching the Excise Office, Exhibit P5 occurrence report was prepared. The appellant along with the properties were produced before the Court on the very next day through Exhibit P7 property list. A forwarding note, the copy of which is Exhibit P8, was also filed. The sample of the contraband was subjected to chemical analysis and Exhibit P9 certificate of chemical analysis was received, which states that the sample analyzed contained 37.27% by volume of ethyl alcohol. Consequently, the appellant was charge sheeted for the offence under Section 55(a) of the Abkari Act.

3. On the side of the prosecution, PWs 1 to 4 were examined and Exhibits P1 to P12 were marked. No defence evidence was adduced. The court below found the appellant guilty of the offence under Section 55(a) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

4. The learned counsel for the appellant Sri. P.V. Kunhikrishnan argued that an offence under Section 55(a) will not lie in a case like this as there is no case for the prosecution that the contraband was possessed by the appellant in the course of any export, import, or transport. Further, according to the learned counsel for the appellant, an offence under Section 58 of the Abkari Act also will not lie as there was no conscious possession of the contraband, with the knowledge that it was unlawfully manufactured.

5. The learned counsel for the appellant has taken me through the entire evidence adduced by the prosecution. According to PW1, Preventive Officer of the Excise Range, Quilandy, while he along with the Excise part were on patrol duty, he got information that the appellant has stored in his possession illicit arrack at his house. After preparing Exhibit P1 search memo, he along with the Excise Party reached the house of the appellant. The appellant was present there at the house. On a search of the house, MO1 Can containing 1= litres of illicit arrack was seized from the kitchen of the house. Exhibit P2 search list was prepared. He placed the appellant under arrest. Exhibit P4 is the arrest memo. Samples were drawn from the contraband. They took the appellant and the contraband to the Excise Office and handed over the appellant and the contraband to the Excise Inspector who was present there. The Excise Inspector registered Exhibit P5 occurrence report. The appellant was produced before the court on the next day through Exhibit P6 remand report. The contraband was produced through Exhibit P7 property list. A forwarding note was filed for subjecting the sample of the contraband to chemical analysis. Exhibit P8 is the copy of the forwarding note. He obtained Exhibit P9 certificate of chemical analysis, which proves that the sample contained 37.27% by volume of ethyl alcohol. It seems that PW1 was subjected to searching cross-examination by the learned defence counsel. Nothing has been brought out in order to impeach the credit or impair the credibility of PW1.

6. PW2 was the Excise Guard who had accompanied PW1 to the house of the accused for the search and seizure. He witnessed the search and seizure. He corroborated the versions of PW1 in all material particulars. Even though PW2 was also subjected