Accused in S.C.No.94/2002 on the file of the Additional Sessions Court (Fast Track-I), Manjeri, is the appellant herein. The appellant was charge-sheeted by the Excise Inspector, Kalikavu Excise Range in Crime No.11/1997 of the Kalikavu police station under Section 55 (a) and (i) of the Abkari Act.

2. The case of the prosecution in nut shell was that, on 19.06.1997 at about 06.00 p.m., the accused was found to be in possession of 1.750 liters of Indian Made Foreign Liquor in his house with No.III/583 of Pandikkad and he was keeping the same for the purpose of sale and he was engaged in sale of the same in violation of the provisions of Abkari Act, thereby he had committed the offences punishable under Section 55(a) and (i) of the Kerala Abkari Act.

3. After investigation, final report was filed before the Judicial First Class Magistrate Court-I, Perinthalmanna, and the case was taken on file as C.P.No.1/2002. Thereafter it was committed to the Sessions court, Manjeri by the learned magistrate under Section 209 of the Code of Criminal Procedure (hereinafter called 'the Code'). After committal, the case was taken on file as S.C.No.94/2002 on the file of the Sessions Court, Manjeri and it was originally made over to the Additional Sessions Court (Adhoc-I), Manjeri, for disposal.

4. When the accused appeared before the court below, after hearing both sides, charge under Section 55(a) and (i) of the Abkari Act was framed 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 6 were examined and Exts.P1 to P8 and MOs 1 to 4 were marked on their side. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence and he had further stated that, he had not committed any offence and he has been falsely implicated in the case at the instigation of the nearby toddy shop owner, as he had conducted agitation against running of such shop in that area. Since the evidence in this case did not warrant the acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. But no oral evidence was adduced on his side, but Ext.D1 was marked on his side. After considering the evidence on record, the court below found the appellant guilty under Section 55(a) and (i) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of 1,00,000/-, in default to undergo simple imprisonment for six months. No separate sentence was awarded for the offence under Section 55(a) and 55(i) of Abkari Act. Set off was allowed for the period of detention already undergone by him under Section 428 of the Code of Criminal Procedure in this case. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below.

5. Heard Smt. Smitha Babu, counsel representing Sri. Babu S. Nair, counsel appearing for the appellant and Smt. Seena Ramakrishnan, learned Public Prosecutor appearing for the State.

6. The counsel for the appellant submitted that, though it was a house search, no search memo was sent to court and no reason has been recorded for his satisfaction regarding the commission of the offence and no reason was stated as to why search warrant could not obtained before conducting the search. Further the search was conducted in violation of Section 31 and 36 of the Abkari Act and as such it is vitiated. Further there is no evidence to show that the accused was engaged in sale of the article. The persons alleged to have been present at that place was not even questioned or cited as witnesses to prove the alleged sale. Further merely because some amount was found in the pocket of the accused, it cannot be said that it was the sale proceeds obtained by sale of the article. She had also argued that,