P. Ubaid, J.

1. The appellant herein challenges the conviction and sentence against him under S. 55(a) of the Kerala Abkari Act (for short "the Act") in S.C. No. 11/2011 of the Court of Session Ernakulam. He was prosecuted along with his brother as the second accused, on the allegation that they illicitly stored and possessed huge quantity of spirit at the shed No. 4/109A of the Pallipuram Grama Panchayat which belongs to the appellant. The Sub Inspector of Police, Munambam conducted a search at the said shed on 2.12.2005 on the basis of reliable information. On the basis of the said information, the Police party first searched the house of the father of the appellant, but nothing could be found there. Immediately, they searched the shed No. 4/109A attached to the house building, and on search, the Police seized a huge quantity of 1830 litres of spirit. When interrogated, the accused Nos. 1 and 2 told the Sub Inspector that it was the spirit stored and kept there by three other persons. On the basis of the statements given by the accused Nos. 1 and 2, the Police registered a crime against five persons including the appellant. The allegation in the F.I.R is that the accused Nos. 1 and 2 permitted the accused Nos. 3 to 5 to store and possess huge quantity of spirit at the shed which belongs to the 1st accused. The 1st accused in the F.I.R is the appellant herein, and the second accused is his brother. After investigation, the Police submitted final report against the appellant and his brother, but the other three accused were deleted. The appellant and his brother appeared before the learned Additional Sessions Judge (Ad hoc-III), North Paravur and pleaded not guilty to the charge framed against them under S. 55(a) of the Act.

2. The prosecution examined 11 witnesses, and proved Exts. P1 to P17 documents. When examined under S. 313 Cr.P.C., the accused denied the incriminating circumstances and contended that the shed where the Police conducted search was long back let out to the 5th accused, and that the huge quantity of spirit was kept there by the accused Nos. 3 to 5. The accused Nos. 3 and 4 are the employees and helpers of the 5th accused, according to them. In spite of opportunities granted, the accused did not adduce any evidence in defence.

3. On an appreciation of the evidence, the Trial Court found the first accused guilty under S. 55(a) of the Act and found the 2nd accused not guilty. Accordingly, the 2nd accused was acquitted, and the first accused was convicted under S. 55(a) of the Act. On conviction, he was sentenced to undergo simple imprisonment for five years and to pay a fine off 5 lakhs by judgment dated 30.5.2012. Aggrieved by the judgment of conviction, the 1st accused has come up in appeal.

4. When this appeal came up for hearing, the learned counsel for the appellant submitted that the accused Nos. 3 to 5 against whom also the crime was initially registered, were dishonestly deleted by the Police and final report was wrongly filed against the two brothers just because the shed belongs to the first accused. The learned counsel also submitted that the huge quantity of spirit was stored there by the accused Nos. 3 to 5 without the knowledge or consent of the appellant or his father. The learned counsel also submitted that if at all any offence is made out against the accused, he can be punished only under S. 64A of the Act for having permitted the other accused to use the premises for storing or possessing spirit unauthorisedly.

5. On a perusal of the materials, I find force in the submissions made by the learned counsel. Let me examine whether there is any strong evidence to connect the appellant herein with the spirit seized by the Police, except that he is the owner of the shed.

6. As regards seizure of huge quantity of spirit, the defence has no dispute practically. PW1 and PW3 examined as independent witnesses did not support the prosecution. PW 2 is the father, of the accused. His evidence is that th