JUDGMENT

Appellant is the accused in S.C.No.447/2001 of Thalassery Sessions Division, who faced trial for offence punishable under Section 55(a) of the Abkari Act. By the impugned judgment, the Assistant Sessions Judge, Payyannur found him guilty and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for one year. That finding is under challenge in this appeal preferred under Section 374(2) of the Code of Criminal Procedure, in short 'Cr.P.C.'.

2. The prosecution allegation is that on 21.02.2001 at about

21.00 hours, the Sub Inspector, Payangadi police station and party found him possessing 10 ltrs. of arrack in a plastic can on the courtyard to his house bearing No.C-VII/526 at Kallakkamthodu in Kadannappally amsom. After seizing the item and arresting the appellant, Crime 48/2001 of that police station was registered. On completion of investigation the charge sheet was laid before the Judicial First Class Magistrate, Payyannur, where the case was taken on file as C.P.36/2001. After completing the procedural formalities, the learned Magistrate committed the case to the Sessions Court, Thalassery, from where the matter was made over to the trial court.

3. After hearing counsel on both sides, the learned Assistant Sessions Judge framed charge alleging offence punishable under Section 55(a) of the Abkari Act, read over and explained, which was denied by the appellant. He had engaged a counsel to defend him. He was on bail.

4. The trial court examined five witnesses for the prosecution as PWs 1 to 5. Exts.P1 to P7 were also marked. The material object was identified and marked as MO1. On completion of evidence, when questioned under Section 313(1)(b) Cr.P.C., he reiterated his earlier stand of total denial and submitted that he has no connection whatsoever with the material object. After enquiry under Section 232 Cr.P.C., when the court found that it is not a case of 'no evidence', the appellant was called upon to enter on his evidence in defence. Pursuant to that call, one witness was examined as DW1. After hearing counsel on both sides, the learned Assistant Sessions Judge found him guilty of the offence alleged and convicted and sentenced as aforestated.

5. I heard learned counsel for the appellant and the learned Public Prosecutor. The trial court records were summoned and examined.

6. The learned counsel for the appellant submitted that the appellant is the victim of false implication; the place of occurrence is an isolated area near a cashew plantation. No one from the neighbourhood was cited or examined, that the investigation was conducted by Sub Inspector, Taliparamba police station, who is an incompetent officer. The counsel also pointed out that the Ext.P4 forwarding note does not bear seal so that Ext.P6 report of the chemical examiner has no evidenciary value. Moreover, the property list is not proved, which is also fatal. Even though the trial court had found that the items were produced before court on 23.02.2001, reason for keeping the same in police station that for perusal by the investigating officer cannot be accepted. According to him, there is no guarantee that the item was kept in safe custody of a responsible officer.

7. Before considering the contentions, evidence of the prosecution can be stated in a nutshell. PW1 is the Sub Inspector, Payangadi police station, who detected the offence. According to him, that day at about 8.30 p.m., he received information from Kallakkamthodu that people have apprehended one Krishnan with arrack, following which he proceeded to the place with the police party. At 9 p.m., he found the appellant surrounded by a small crowd, carrying 10 ltrs. of some liquid in a black can. He opened the can and tested its content by smelling and tasting and understood it to be arrack. The appellant was arrested and MO1 material object was seized under Ext.P2 mahazar. After reaching back the police station, the crime