The main legal principle established is that 'storing' and 'possession' are distinct acts, and the presumption under Section 64 of the Act cannot be drawn for an offence not alleged against the accused.

K. HEMA, J.

1. If a contraband article is seen kept or stored in a building or house, can owner or occupier of such building be held liable for "storing" or "possession" of such article under the Abkari Act ('the Act', for short)? Does "possession" follow "storage"? Can presumption under Section 64 of the Act be drawn if the Court finds that as per the case records, prosecution has not even alleged commission of any of the offences referred to in the said section? These are the few important questions for consideration in this appeal.

2. According to prosecution, on 06/12/2004 at about 01.30 p.m., PW 1 Excise Inspector got reliable information that arrack was 'kept' in appellant's (A2) house. A search memo was prepared and PW 1 and his party proceeded to house. When they reached the house, appellant and 1st accused were present in the house. The house was searched and three cans containing 35 litres of arrack were found in a room situated on the western side of the kitchen of the house. Appellant was questioned about the arrack, when he stated that 1st accused had taught it to his house and he allowed 1st accused to keep the arrack in his house. Both of them were arrested from the spot and contraband articles were also seized under a mahazar, Ext. P1. A case was registered, as per Ext. P6 and after investigation, PW 5 filed a report under Section 50 of the Act.

3. Prosecution examined PW 1 to PW 5 and marked Ext. P1 to P11 and MO 1 and MO 2 on its side. Both accused, while questioned under Section 313 of Cr.P.C., stated they are innocent of the allegations made but they did not adduce any evidence. Trial Court, on an analysis of the evidence, held that both accused "stored" arrack and thereby, they were also in "possession" of 105 litres of arrack. They were each convicted under Section 8(1) and (2) of the Act and each of them were each sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs.1,00,000/- each and in default, to undergo simple imprisonment for three months.

4. Second accused alone challenged the above conviction and sentence. He filed this appeal from Jail. He was undefended and hence, Smt. Asha Chacko was appointed as State brief to defend him. Heard both sides. Learned counsel for appellant submitted that appellant has already served the sentence and he is released from jail also. On merits, ownership of the house was disputed. Contentions were also raised about absence of label on MO 2. It was pointed out that though MO 1-can contained label, it was empty at the time of examination.

5. Learned Public Prosecutor, Sri. K.S. Sivakumar argued that mere absence of label on the can cannot be made a ground to acquit the accused. The seizure was effected in the year 2004 and trial was conducted only five years, in 2009. During this long period, the cans were kept in the premises of the Excise Office and Court and it is possible that the late would have been lost, the can be damaged, and contents in the can be leaked out and lost. This probability may be kept in mind while analysing evidence, it is submitted.

6. Learned Public Prosecutor also argued that ownership certificate, Ext. P10 it self shows that appellant is owner of the house. He was also present in the house at the time of seizure of arrack from his house. But, he did not succeed in establishing that the housed not belong to him. Huge quantity of arrack was seized from his house and hence, as the owner and occupier of the house, he can be presumed to have "stored" the arrack and also in "possession" of the arrack seized from his house, it is vehemently argued.

7. On hearing both sides and on going through the records in this case, I find that prosecution has proved by satisfactory evidence that 105 litres of arrack were found kept in the house belonging to and occupied by appellant. It is also proved that appellant was present in the house, at the time of detection of the offence and seizure of contraband articles from his house. The