K. ABRAHAM MATHEW, J.

1. The second accused in Sessions Case No. 977 of 2012 on the file of the Additional Sessions Judge-II, Kasaragod who has been convicted of the offence under Section 8 of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1 lakh with a default clause is the appellant. The prosecution case is that he had in his possession 3194 packets each containing 100 ml. of arrack which were found concealed in a secret chamber in his house.

2. Heard Smt. Asha Babu learned counsel for the appellant and the learned Public Prosecutor.

3. On 21.12.2007 PW3, Excise Officer attached to Kumbala Excise Range Office, was on patrol duty when he got the information that arrack was kept in the house of the appellant. PW3 prepared a search memo and thereafter, he along with PW1 S.I. of Police went to the house of the appellant, which was found locked. They broke open the front door and searched the rooms. In the room in the south-west they found a secret chamber on the floor which had been covered with a kadappa stone. There were seven plastic bags in the chamber. Six bags contained 500 packets and the last one 194 packets. Three packets were opened. The contents was found to be arrack, the total quantity of which was 319.4 litres. There were Kannada writings on the packets. The contents of the three packets were mixed up and 290 ml. of arrack was taken as sample in a 375 ml. capacity bottle; it was sealed at the place of occurrence. Ext.P2 is the search list prepared by PW3 and signed by PW2 and PW4. This, in brief, is the evidence given by PW1 and PW3. There are no contradictions in the evidence of PW1 S.I. of Police and PW3 Excise Inspector. There is no reason to disbelieve their evidence.

4. The seized articles were produced before the Assistant Excise Commissioner. He destroyed it complying with the directions in Section 53 A Abkari Act. Ext.P8 is the inventory prepared for the articles and Ext.P9 are their photos.

5. PW2 is an attesting witness in Ext.P1 mahazar and Ext.P2 search list. As he was about to go to Sabarimala for pilgrimage he was not expected to enter the house from where the liquor was seized and so he stood outside. The seized articles were dumped outside the house. In his evidence nothing could be brought out to show that he is not a reliable witness. To some extent his testimony supports the evidence of PW1 and PW3 that arrack was seized from the house.

6. PW4, the second attesting witness to Exts.P1 and P2 denied having witnessed the seizure or preparation of the sample. But he admitted that he signed Ext.P1 mahazar and Ext.P2 search list. There is no explanation how he happened to put his signature. So his testimony that he did not witness the incident does not appear to be true.

7. Ext.P13 ownership certificate produced by PW6 Secretary of Mangalpady Grama Panchayat proves that the house from which the contraband articles were seized belongs to the appellant. There is no evidence that it was in the possession of anyone else, or for that matter there is not even a suggestion that it was in the possession of someone else. The only conclusion that can be reached is that the house was in the ownership and possession of the appellant.

8. Smt. Asha Babu learned counsel for the appellant submitted that the contents of three packets was mixed up and this vitiated taking of the sample. She relied on the decision of the Supreme Court in Vishwanath vs. State of Maharashtra, (2005) 9 SCC 599. The law applicable in that case provided that no person shall be in possession of more than 5 litres of liquor which made the quantity in possession of the accused relevant in that case. It was in that context the Supreme Court held that samples taken from different bottles in a single bottle vitiated the preparation of the sample. In this case the liquor was arrack. Possession of even a drop of arrack is an offence; the quantity is immaterial. The moment the prosecution