This appeal is preferred against the judgment of conviction in SC 568/2004 on the files of the Additional Sessions Court (Adhoc-I), Kasaragod. Conviction was under Sections 55(a) and (g) of the Abkari Act and sentence was to undergo six months rigorous imprisonment as well as to pay a fine of Rs.1,00,000/- under each head.

2. When the appeal came up for hearing, the learned counsel appearing for the appellant Adv. Ajivas submitted before this court that here is a case where the prosecution failed to prove the charge framed by the court against the appellant by cogent and reliable evidence. Both the eye witnesses were not supported the prosecution case. It is also the submission of the learned counsel that here is an offence under the Abkari Act. The seized contraband should have been produced before the court forthwith. Even though the alleged seizure was on 23.10.2002, admittedly, a partial property list was produced before the court on 25.10.2002, which was returned from the court and again produced it only on 29.10.2002. Thus, there is an inordinate delay to comply with the mandate of the statute. As per the prosecution case, seizure was made from the house owned by accused No.2, who was acquitted in the case. Mere presence cannot be equated with the possession, when accused No.2 who was the owner of the house was also prosecuted. At the time of search, the appellant was not therein. Thereafter, he was falsely implicated to save the accused No.2.

3. I heard the learned Public Prosecutor.

4. The learned Public Prosecutor submitted before this court that here is a case where the appellant was arrested red handedly from the premises. There is nothing to disbelieve the prosecution case. First Information Report will reveal that it reached before the court on the very same date. Under such circumstances, there is nothing to interfere with the conviction and sentence imposed by the court below.

5. After hearing the learned counsel, I perused the records and evidence in this case. Prosecution altogether examined eight witnesses, PWs 1 and 2, who are the independent witnesses turned hostile and PWs 3 and 4 are attestors to scene mahazar. PW5 is the detecting officer. He deposed before the court that he got reliable information that arrack distillation is going on from the house belonging to Narayani and on such information, a search memo was prepared and search was conducted and seized 7 ltrs. of arrack as well as utensils for distilling arrack. PW6 is a police constable who supported the evidence of PW5. PW7 is the Secretary of the Grama Panchayath, who certified that building No.B.P.VII/50 belongs to Narayani, A2, in this case. He marked Ext.P11. PW8 was the Sub Inspector of Police, Adhur Police Station. He conducted the investigation as per the direction of the Circle Inspector. In this case, the main aspect to be considered is that what will be the prejudice caused to the accused when the investigation officer was not an Abkari officer. As per the instruction of the Circle Inspector, a police officer conducted the investigation. But there will not be any powers of Abkari Officer vested on an officer of another police station. Thus, in this case, investigation was conducted not by an Abkari Officer, who was having powers under Sections 40 to 53 of the Abkari Act. Surely, the Sub Inspector of Police, Badiadukka Police Station is an Abkari Officer.

6. Now, the next relevant point to be considered is that in this case the seized articles were actually not reached before the court forthwith. At first instance, it was not accepted by the court on the ground that all the seized articles were not produced. It was thereafter produced only on 29.10.2002. In this case, it can be further seen that as per the definite case of the prosecution, the house was owned by the 2nd accused who was acquitted in this case. The prosecution got no case that the appellant herein was also residing therein at the relevant point of time. As per the evi