1. The accused in SC.No.379/2008 on the file of the Assistant Sessions Court, Alappuzha is the revision petitioner herein. The revision petitioner was charge sheeted by the Excise Inspector Karthikappally excise range alleging the offences under sections 55 (a), (b) and (g) and sections 8(1) and (2) of the Abkari Act.

2. The case of the prosecution in nutshell was that on 11.8.2004 at about 10 p.m the revision petitioner was found engaged in manufacture of arrack at Santhi Bhavan in Chingoli panchayat in violation of the provisions of the Abkari Act and for that purpose he was found to be in possession of 4 litres of arrack and 35 litres of wash and implements used for manufacture of arrack and thereby he had committed the offences punishable under sections 8(1) read with 8 (2) and 55 (a), (b) and (g) of the Abkari Act.

3. After investigation, final report was filed before the Judicial First Magistrate has taken Class Magistrate Court-II, Haripad and the learned cognizance of the case as C.P.No.1/2008 and committed to the Sessions Court, Alappuzha and after committal, the Sessions Judge took cognizance of the case as S.C.No.379/2008 and it was made over to Assistant Sessions Court, Alappuzha for disposal.

4. When the accused/revision petitioner appeared before the court below, after hearing both sides, the learned Assistant Sessions Judge framed charge under sections 8(1) and (2) and 55(a), (b) and (g) of the Abkari Act against the revision petitioner and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, Pws 1 to 5 were examined and Exts.P1 to P9 and Mos 1 to 6 were marked on their side and after closure of the prosecution evidence, the revision petitioner was questioned under section 313 of the Code and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he has been falsely implicated in the case. He was arrested by the excise officials while he was returning home after his work and the articles taken from the canal adjacent to his house were used to falsely implicate him in this case. Since the evidence in this case did not warrant acquittal under section 232 of the Code, the revision petitioner was directed to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found the revision petitioner guilty under sections 55 (a), (b) and (g) and 8(1) and (2) of the Abkari Act and convicted him there under but sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for two months under Section 55 (b) of the Act as under section 71 of the Indian Penal Code the entire offence was committed as part of the same transaction and that will fall under section 55 (b) of the Abkari Act. Set off was allowed for the period of detention already undergone by him in this case.

5. Dissatisfied with the same, the revision petitioner filed Crl.A.No.397/2011 before the Sessions Court, Alappuzha and the same was made over to Additional Sessions Court, Alappuzha for disposal and the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Dissatisfied with the same, before the present revision has been filed by the revision petitioner/accused the court below.

6. Since this Court has already suspended the sentence even before admitting the revision, this Court felt that the revision can be admitted, heard and disposed of on merits. Earlier, judgment was dictated in the open court. But, later it was found that a specific question was raised regarding the legality of invoking section 71 of the Indian Penal Code in this case by brother Judge while considering the question of admission, this Court felt that it has to be heard in detail as in case