This appeal is directed against the judgment dated 03.05.2006 of the Additional Sessions Judge (Ad hoc-I), Thodupuzha (for short 'the court below') in SC No.329/2004. Two accused involved in the case were found guilty by the court below for the offence punishable under Section 8(1) of the Abkari Act (for short 'the Act') and each of them were convicted under Section 8(2) of the Act and sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for one year each.

2. The case of the prosecution was to the following effect: On 16.11.2002, on getting information that sale of illicit arrack was carried on in the shed situated in the property of one Mari Dhorai in Ward No.IV of Marayoor Panchayat at Chinnavara kara in Marayoor Village, the Assistant Sub Inspector of Police, Marayoor Police Station along with three Constables proceeded to the spot. When they reached at the spot, they found a shed therein. Prior to the conduct of necessary examination, a search memorandum was prepared by the Assistant Sub Inspector of Police and forwarded to the Court. Thereafter the shed was examined. A black plastic tank having the capacity of 200 liters was found, containing liquor more than half inside. Two empty Cans having the capacity of 35 liters and one Can of 20 liter capacity with the smell of illicit liquor was also found in the shed. Two persons were found inside the shed and one among them was found engaged in transferring the liquor from the tank in Cans using a funnel and mug. The 2nd accused was found in possession of a Can having capacity of 10 liter filled with liquor. The liquor was smelled and tasted and convinced it as illicit arrack. Both the accused were arrested, after making them convince about the grounds of arrest and questioned. Thereafter samples have been drawn in two bottles having one litre capacity and those were sealed and labelled with labels containing the signatures of the accused, independent witnesses arrived there and the Assistant Sub Inspector. Thereafter a seizure mahazar was prepared and got attested by independent witnesses. The accused along with the properties seized and the samples drawn therefrom were taken to the Police Station, Marayoor. After reaching the Police Station, Crime No.174/2002 was registered alleging commission of the offence under Section 8(1) punishable under Section 8(2) of the Act. A forwarding note and property list were prepared from the police Station and the properties have been forwarded to the Judicial First Class Magistrate Court, Devikulam. Investigation was conducted by PW5 himself and on concluding the same, a final report was prepared, chargesheeting both the accused for the offence as aforesaid and the same was laid before the Judicial First Class Magistrate Court, Devikulam. The final report was received on file by the Magistrate. Having convinced that the offence involved being exclusively triable by a Court of Sessions, the same was committed to the Court of Sessions, Thodupuzha, wherefrom it was made over to the Additional Sessions Court, Thodupuzha and further for trial to the court below.

3. The learned Public Prosecutor and the learned counsel representing the defence were heard on framing of charges. Charge was framed for the offence under Section 8(1), punishable under section 8(2) of the Act. It was read over and explained to both the accused, they denied the allegations in the charge against them and claimed to be tried. Accordingly the trial was held.

4. On the side of the prosecution, 5 witnesses were examined and 5 documents were marked respectively as PW1 to PW5 and Exts.P1 to P5. Exts.C1 and C2 were also marked as Court Exhibits. Properties involved in the case were marked as MO1 to MO3, MO4 series, MO5 & MO6. After closure of the prosecution evidence, both the accused were questioned under Section 313 (1) (b) Cr.P.C. They denied all questions put to them a