The appellant is the accused in S.C.No.389/2005 on the files of the Additional Sessions Court (Adhoc)-II, Thodupuzha. The court below found that the appellant is guilty under Sections 55(a)(g) and 8(2) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for one year and to pay Rs.1,00,000/- as fine for offence under Section 55(g) of the Kerala Abkari, in default to undergo rigorous imprisonment for three months for offence under Section 8(2) of the Kerala Abkari Act.

2. The prosecution allegation is that on 13.04.2002, at 6.00 p.m., the Assistant Excise Inspector, Kattappana searched a building bearing No.X/326 of Kanchiyar Panchayath and detected 1 litre of arrack, which was found being hidden among the household utensils at the kitchen. It was also alleged that the excise party detected 54 litres of wash from the garden land in which the building is alleged to be situated. The further allegation of the prosecution is that the said building and the garden land belongs to the appellant and that the appellant is punishable under the Abkari Act. The prosecution has miserably failed to prove that the appellant is the owner and in exclusive possession of the garden land and building. Even then, the learned Sessions Judge has convicted the appellant for the above said offences. Highly aggrieved by the judgment of conviction and sentence dated 14.03.2010 in SC.No.389/2005 on the files of the Additional Sessions Judge (Adhoc)-II, Thodupuzha, this appeal has been preferred.

3. The appellant has taken a ground in the appeal that the court below failed to note the fact that the prosecution relates to a detention from the building No.X/326, whereas the appellant is residing in building No.XII/491, as evidenced by Ext.D1 ration card. The arrack was found hidden among the kitchen utensils and at the time of search, the appellant as well as his wife were alleged to be present at the house. The appellant produced his ration card to prove the fact that there are altogether 5 adult members in his home. It was also contended that he is not in exclusive possession of the building. Another contention raised by the appellant's counsel was that the prosecution has not produced any piece of evidence to prove the exclusive possession of the contraband by the appellant and there is no piece of evidence on record to prove neither the ownership nor the possession of the land from where the wash was seized. The mahazar did not contain any description about the boundary demarcation of the property allegedly belongs to the appellant. The court below went wrong in appreciating the undue delay caused in producing the material objects before the court and the delay was not properly explained. For the reasons as mentioned above, the appellant prays for setting aside the judgment and conviction passed by the Additional Sessions Judge (Adhoc-II), Thodupuzha in SC.No.389/2005.

4. PW1 is the Asst. Excise Inspector, Kattappana, who was detected the offence. According to him, on 13.04.2002, while he was on patrol duty, he got information that the appellant was keeping arrack for sale in his house and also wash for distillation of arrack. After preparing the search memorandum and sending it to the court and after fetching witnesses, PW1 proceeded to the house of the appellant. He reached there at 6.00 p.m. The appellant and his wife were present in the house. On searching 1 ½ litres of plastic bottle was found concealed in the kitchen. The bottle was examined and it contained 1 litre of arrack. Thereafter, the property of the appellant was also searched. On the root of a coconut tree, 10 meter away from the house of the accused, 3 plastic pots of capacity of 18 litres each were found concealed. The pots were examined and it contained wash for the distillation of arrack. Thereafter, the accused was arrested at 6.00 p.m. The sample of arrack was taken in a 375 ml. Bottle. The bottle containing arrack was also sealed and taken into custody