K. Ramakrishnan, J.

The accused in S.C.No.330/2003 on the file of the Additional Sessions Judge, Fast Track-III, Thiruvananthpuram is the appellant herein.

2. The appellant was charge sheeted by the Additional Sub Inspector of Police, Thumba police station in Crime No.88/2001 under sections 55(a), (h) and section 8(1) of the Abkari Act.

3. The case of the prosecution in nutshell was that on 25.7.2001, at about 3.20 p.m. the accused was found to be in possession of 19¼ litres of arrack in a jerry can and a plastic bottle and engaged in the sale of the same and thereby he had committed the offence punishable under sections 55(a), (h) and 8(1) of the Abkari Act.

4. After investigation, final report was filed before the Judicial First Class Magistrate Court-II, Thiruvananthapuram where it was taken on file as C.P.No.73/2002. After complying with the formalities, the learned Magistrate committed the case to the Sessions Court, Thiruvananthapuram. After committal, the case was taken on file as S.C. No. 330/2003 on the file of the Sessions Court, Thiruvananthapuram and later it was made over to the Additional Sessions Court, Adhoc-III, Thiruvananthapuram for disposal.

5. When the accused appeared before the court below, after hearing both sides, charge under section 55(a) of the Abkari Act was framed (ought to be under section 8(1) of the Abkari Act) 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 5 were examined and Exts.P1 to P6 and Mos 1 to 3 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') 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 is a labourer attached to INTUC union and he has been falsely implicated in the case. Since evidence in this case did not warrant an acquittal under section 232 of the Code, the accused was called upon to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under section 55(a) (ought to be under section 8(1) of the Abkari Act) and convicted him threunder and sentenced him to undergo simple imprisonment for one year and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for three months. 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.

6. Heard counsel for the appellant and Smt. Seena Ramakrishnan, Public Prosecutor appearing for the respondent/State.

7. Counsel for the appellant submitted that the detection was made by the Additional Sub Inspector, who is not an abkari officer and as such seizure is vitiated. He had also submitted that major portion of the investigation was conducted by the Assistant Sub Inspector of Police, who is not an abkari officer and as such investigation is also vitiated. He had further submitted that there was no spot sample taken and it is not known from where and when the sample was taken and the thondi clerk was not examined. So it cannot be said that the prosecution has proved the link between the accused and the contraband article so as to convict him for the offence alleged. He had also argued that seizure was not proper and identification of the accused as the person ran away from the place has not been established. So the court below was not justified in convicting the appellant for the offence alleged and he is entitled to get acquittal. He had relied on the decisions reported in Joy v. State of Kerala (2010 (3) KLT 20), Subash v. State of Kerala (2008 (2) KLT 1047), Saji @ Kochumon v. State of Kerala (2010 (3) KLT 471), Sasidharan v. State of Kerala (2012