The main legal point established in the judgment is that the prosecution must prove the guilt of the accused beyond reasonable doubt, and the mandatory provisions of the Abkari Act, such as Section 53A, must be strictly interpreted and complied with. Violation of such provisions can be fatal to the prosecution's case.

JUDGMENT :

The appellant is the convict in S.C.No.654/2007 on the file of the Additional Sessions Court, (Adhoc)-III, Kasaragod, who faced trial for an offence alleging under Section 58 of the Abkari Act, hereinafter referred to as the Act. The precise allegation against the appellant is that, on 22.12.2006, at 1.30 P.M., the Sub Inspector of Police, Bedakam Police Station, in Kasaragod District and party found him in illegal possession of 30 litres of arrack; that day at 1.30 P.M., when his house No. BP I/649-A of Padinharekkara, Chalakkad in Kolathur Village was searched, 30 litres of arrack made in Karanataka State was found stored in 300 sachets, each containing 100 ml., on the shelf in the south western corner of his house. Thus Crime No. 161/2006 of the Bedakam Police Station was registered and the accused/appellant was arrested along with the contraband.

2. After investigation, the Sub-Inspector laid the charge sheet before the Judicial First Class Magistrate, Kasaragod, who after completing the necessary formalities under Section 207 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., committed the case to the Sessions Court, Kasaragod under Section 209 of the Cr.P.C.

3. The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when a charge under Section 58 of the Act was framed, read over and explained, he pleaded not guilty. He was on bail.

4. On the side of the prosecution, five witnesses were examined and Exts.P1 to P10 were marked. After closing the prosecution evidence, when examined under Section 313(1)(b) of the Cr.P.C., he denied all the incriminating materials. He also filed a statement contending that he was being prosecuted on the basis of fabricated materials. According to him, he is not a resident of building No. BP II/649-A of Bedadukka panchayat, he has no such house. He is a resident of BP II/497-A. He has no other residential building. He is innocent and a false case was foisted against him. He denied that he was arrested by the police. Seizure of the contraband from his possession also was denied by him.

5. As it was not a fit case for acquittal under Section 232 of the Cr.P.C., the learned Additional Sessions Judge called upon him to enter on his evidence in defence. Accordingly, the Secretary of the Bedadukka Grama Panchayat was examined as DW1 and Exts.D1 to D4(a) were marked. Exts. C1 and C1(a) were also marked as court exhibits. After hearing counsel on both sides, by the impugned judgment dated 05.05.2011, repelling the plea of innocence, the learned Additional Sessions Judge found him guilty of offence punishable under Section 58 of the Act and sentenced to undergo rigorous imprisonment for 41/2 years and pay fine of Rs. 1,00,000/-, in default to undergo rigorous imprisonment for three months. He was also found entitled to get the benefit under Section 428 of the Cr.P.C. That finding of conviction and sentence are challenged before this Court under Section 374(2) of the Cr.P.C.

6. I heard the leaned counsel for the appellant and also the learned Senior Public Prosecutor. The learned counsel raised three contentions before this Court. According to him, the definite case of the prosecution is that the contraband items were seized from his house, BP I/649-A in Padinharekkara, but he has no such residence nor the building is in his possession. The documents produced by the prosecution would show that the items were seized from BP II/649-A. Secondly, it was argued that the Ext.P7 Inventory was prepared by the Sub Inspector of Police, which is violative of Section 53A of the Act. Thirdly, it was argued that there is no evidence that the appellant was arrested, so long as no supporting materials are available. The counsel also relied on the decision reported in Balakrishna Rai. v. State of Kerala [2020(3) KLT 727].

7. I heard the learned Senior Public Prosecutor also and perused the trial court records.

8. In order to prove the guilt of the appellant,