K. Ramakrishnan, J.

The second accused in S.C. No.190/2005 on the file of the Additional Sessions Court (Adhoc)-I, Kottayam is the appellant herein. The appellant along with his son were charge sheeted by the Excise Circle Inspector, Kottayam in Crime No.2/2002 of Ettumanoor excise range under sections 55(g) and 64A of the Abkari Act.

2. The case of the prosecution in nutshell was that on 11.3.2002 at about 8.20 a.m. the second accused being the owner of the house and first accused being his son were found to be in possession of 40 litres of wash, a material used for manufacturing arrack, and it was kept there with the connivance of the second accused, owner of the house and thereby they have committed the offences punishable under sections 55(g) and 64 A of the Abkari Act.

3. After investigation, final report was filed before the Judicial First Class Magistrate Court, Ettumannor where it was taken on file as C.P.No.13/2005. After complying with the formalities, the case was committed to the Sessions Court, Kottayam by the learned Magistrate under section 209 of the Code. After committal, the case was taken on file as SC.No.190/2005 and it was made over to the Additional Sessions Court (Adhoc)-I, Kottyam for disposal.

4. When the accused appeared before the court below, after hearing both sides, charge under sections 55(g) and 64 A of the Abkari Act was framed and the same was read over and explained to them and they pleaded not guilty. In order to prove the case of the prosecution, Pws 1 to 8 were examined and Exts.P1 to P9 and MO 1 were marked on their side. After closure of the prosecution evidence, the accused were questioned under section 313 of the Code and they denied all the incriminating circumstances brought against them in the prosecution evidence. They have further stated that they have not committed any offence and they are innocent of the same and they have been falsely implicated in the case. Since the evidence in this case did not warrant an acquittal under section 232 of the Code, the accused were called upon to enter on their defence. But no defence evidence was adduced on their side. After considering the evidence on record, the court below found the first accused not guilty of the offence alleged and acquitted him of that charge giving him the benefit of doubt under section 235(1) of the Code. But the court below found the appellant not guilty for the offence under section 64 A of the Abkari Act and acquitted him of that charge but found him guilty under section 55(g) of the Abkari Act on the basis of the presumption available under section 64 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for 6 months and also to pay a fine of Rs. One lakh in default to undergo simple imprisonment for three months more. Set off was allowed for the period of detention already undergone. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below.

5. Since there was no representation for the counsel appearing for the appellant in spite of opportunity given, Sri. A. Chandra Babu was appointed as legal aid counsel. Heard Sri. A. Chandra Babu, legal aid counsel and Sri. Jibu P. Thomas, Public Prosecutor appearing for the State.

6. The legal aid counsel submitted that there is no evidence to connect the appellant with the commission of the crime. Merely because he is the owner of the house, it cannot be said that he was in conscious possession of the article said to have been seized from the house. It is seen from the evidence that only the first accused was seen there in the house and he ran way from the place on seeing the excise party and thereafter they caught hold of him and arrested him from the spot and seized the articles. Only thereafter on the basis of the document collected showing that the house stands in the name of the appellant, he has been implicated in the case. Further, the case alleged against him was that he had com