K. Ramakrishnan, J.

Accused in S.C. No.85/2002 on the file of the Assistant Sessions Judge, Pathanamthitta, is the appellant herein. The appellant was charge-sheeted by the Sub Inspector of Police, Thannithodu police station in Crime No.46/1999 of that police station under Section 8(1) read with Section 8(2) of Abkari Act.

2. The case of the prosecution in nut shell was that, on 14.07.1999 at about 05.30 p.m., the accused was found to be in possession of one liter of arrack in a 1 liter bottle with a glass on the southern court yard of Puthuparambil house with No.139/3 of Thannithodu Panchayath situated at Idakannam in Thannithodu Village in violation of the provisions of Abkari Act and thereby he had committed the offence punishable under Section 8(1) read with Section 8(2) of the Kerala Abkari Act.

3. After investigation, final report was filed before the Judicial First Class Magistrate Court-II, Pathanamthitta, and the case was taken on file as C.P.No.73/1999. Thereafter it was committed to the Sessions Court, Pathanamthitta, by the learned magistrate under Section 209 of the Code of Criminal Procedure (hereinafter called the Code). After committal, the Sessions Court, Pathanamthitta had taken cognizance of the case as S.C.No.85/2002 and it was made over to Assistant Sessions Court, Pathanamthitta, for disposal.

4. When the accused appeared before the court below, after hearing both sides, charge under Section 8(1) read with Section 8(2) 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 3 were examined and Exts.P1 to P5, MO1, and MO2 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. He had further stated that, he had not committed any offence and he has been falsely implicated in the case and he was taken from his house. Since the evidence in the case did not warrant an acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The thondy clerk was examined as DW1and Ext.D1 was marked through him. After considering the evidence on record, the court below found the accused guilty under Section 8(1) read with Section 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1,00,000/-, in default to undergo rigorous imprisonment for one year more. Set off was allowed for the period of detention already undergone by him in this case. Aggrieved by the same, the present appeal has been preferred by the appellant/ accused before the court below.

5. Though the appeal ought to have been filed before the Sessions Court, Pathanamthitta, under Section 374(3)(a) of the Code, as the case was decided by the Assistant Sessions Judge and the sentence was less than seven years, this court has admitted the appeal and sentence was suspended as early as in the year 2004. Returning the appeal on technical ground after long lapse of delay of nearly 11 years, which occurred due to a mistake committed by this court, that should not affect the disposal of the case on merit. Further it cannot be said that this court is having total lack of jurisdiction to entertain an appeal against conviction. So invoking the power under Section 482 of the Code, in order to avoid delay in disposal of the appeal, this court has decided to proceed with the appeal on merit, instead of returning the same to be presented before the proper court, after the lapse of 11 years.

6. Heard Sri. Sethunath, counsel representing the counsel for the appellant and Smt. Seena Ramakrishnan, learned Public Prosecutor appearing for the State.

7. The counsel for the appellant submitted that, no arrest memo or forwarding note has been produced and marked in thi