This appeal is preferred by the accused against the judgment in S.C.171 of 2002 of additional Sessions Judge, Adhoc-1 Kasargod for offence punishable under Section 55(a) of the Abkari Act. The charge against the appellant is that on 7.8.2001 at 11.45 am, appellant was found in possession of 7 1/2 litres of arrack and 60 litres of wash in his house No.KP 1/143(PP V/330) of Kallloor Village by the Assistant S.I of Police, Rajapuram. Accused was arrested and contraband articles were seized after preparing a mahazar. Reaching at the police station, he registered a crime. After completing investigation, S.I of Police, Rajapuram laid charge before Judicial First Class Magistrate I, Hosdurg. Subsequently, it was committed to Sessions Court. From there, it was made over to additional Sessions Judge, Adhoc1.

2. During trial, prosecution examined PW1 to PW6 and marked Ext.P1 to P8 as documentary evidence. MO1 to MO3 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned additional Sessions Judge convicted the accused under Section 55(a) and (g) of the Abkari Act and sentenced to rigorous imprisonment for three months each and fine of Rs.1 lakh in default rigorous imprisonment for three months each. Being aggrieved by that, he preferred this appeal.

3. Learned counsel appearing for the appellant contended that the offence was detected by a non empowered officer and a conviction is not maintainable in law on the basis of such detection. No evidence has been adduced by the prosecution to prove that appellant is in possession of the property.

4. According to Section 3(d) of the Abkari Act, Abkari officer means the Commissioner of excise or any officer or other person lawfully appointed or invested with the powers under Section 4 or 5. Section 4(d) of the Abkari Act says, the government may appoint officer to take action under Section 40 to 53. According to Section 4(e), government may appoint any subordinate officers of such class and with such discretion and powers and duties under this Act as State Government may think fit. Government is also empowered to make rules from time to time prescribing powers and duties to be exercised and performed by abkari officers of several class. However government issued SRO No.321/1996 dated 29.3.1996 empowering SI of Police in charge of law and order working in the general executive branch of the police department within their jurisdiction as empowered officers.

5. The notification issued under Section 4 reads as follows :-

“S.R.O.No.321/96.- In exercise of powers conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purpose of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid.

This notification shall come into force with immediate effect.”

Explanatory Note.- The Government have decided to abolish all arrack shops in the State of Kerala from 1-4-1996. As per G.O. (MS) No.26/96.TD dated 14-2-1996, Government have announced the new Excise Policy in the year 1996-97. In order to implement the Government policy effectively the Government have decided to empower the Police Officers to register cases against violation of Excise Laws as per G.O.(MS) No.32/96/TD dated 26-2-1996. In the high level meeting of the Officers of the Excise Police and Revenue Departments convened by the Honourable Chief Minister of Kerala on 17-3-1996, it has been decided to invest the