K. Ramakrishnan, J.

1. Accused Nos. 1 and 2 in S.C.No.243/2001 on the file of the Additional Sessions Court (Fast Track-I), Palakkad, are the appellants herein. The appellants were charge-sheeted by the Excise Inspector, Alathoor Excise Range in Crime No.2/1998 of that Excise Range under Section 55(a) of Abkari Act.

2. The case of the prosecution in nut shell was that, on 09.04.1998 at about 12.15 p.m., near Swathi Threatre, Alathoor, along with National Highway, first accused being the driver and 2nd accused being the person travelled in the vehicle bearing No.KL-7/M-7713 transported 1150 liters of toddy without any proper documents and using a fake permit in violation of the provisions of Abkari Act and thereby they have committed the offence punishable under Section 55(a) of the Kerala Abkari Act.

3. After investigation, final report was filed before the Judicial First Class Magistrate Court, Alathoor, where it was taken on file as C.P.No.19/2000. After complying with the formalities, the learned magistrate committed the case to Sessions court, Palakkad, under Section 209 of the Code of Criminal Procedure (hereinafter called the Code) against the present appellants as 3rd accused in the case was absconding and case against him was split up and refiled as C.P.No.29/2001. After committal, the learned Sessions Judge, Palakkad took cognizance of the case as S.C.No.243/2001 against the present appellants and it was made over to Additional Sessions Court (Adhoc- I), Palakkad, for disposal.

4. When the accused appeared before the court below, after hearing both sides, charge under Section 55(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 6 were examined and Exts.P1 to P10 and MOs 1 and 2 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure 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 were falsely implicated in the case. Since the evidence in this case did not warrant an acquittal under Section 232 of the Code of Criminal Procedure, 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 appellants guilty under Section 55(a) of the Abkari Act and convicted them there under and sentenced them to undergo rigorous imprisonment for four years each and also to pay a fine of 1,00,000/-each, in default to undergo simple imprisonment for one year each. Set off was allowed for the period of detention already undergone by them in this case. Aggrieved by the same, the present appeal has been preferred by the appellants/ accused Nos. 1 and 2 before the court below.

5. Heard Sri.Nithish Mathew, counsel representing the senior counsel Sri. C.C.Thomas, appearing for the appellants and learned Public Prosecutor Sri. Jibu P.Thomas appearing for the State.

6. The counsel for the appellant submitted that, there was no evidence to show that Ext.P3 was a bogus permit as claimed by the prosecution. Unless it is proved by the prosecution that it is bogus permit, it cannot be said that the transit of toddy was illegal. Further there is no evidence adduced on the side of the prosecution to prove that first accused was the driver of the vehicle and no evidence adduced to connect the 2nd accused with the articles transported in the vehicle. The driving license and registration certificate of the vehicle though said to have been seized were not produced before the court to connect the first accused with the commission of the crime. Further even assuming that first and 2nd accused were travelling in the vehicle and they transported toddy, unless it is proved that Ext.P3 is a bogus p