JUDGMENT

Aggrieved by the judgment dated 12.08.2008, passed by the Additional Sessions Judge, Fast Track Court-II Palakkad in S.C No.337/2006, the accused has preferred this appeal.

2. By the impugned judgment, the appellant/accused was convicted for the offence punishable under Section

8(2) of the Abkari Act.

3. The prosecution case is that on 29.08.2003 at about 05.50 p.m, the accused was found in possession of about 10 litres of arrack in a black can on the public road near the railway culvert at Perur Desom in Lakkidi Perur Village.

4. PW1, the Preventive Officer Of Ottapalam Excise Range detected the offence. On the date of occurrence, he was on patrol duty. When the excise party led by PW1 reached Sadanam road the accused was found carrying a plastic can. On inspection, it was found that the can contained 10 litres of illicit arrack. The accused was arrested. PW1 collected 300 ml of arrack from the bottle and sealed the same to be used as sample. The accused and the contraband substance along with the records prepared in the place of occurrence were produced before the Excise Range Officer, Ottappalam.

5. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ottapalam. The case was committed to the Sessions Court, Palakkad from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.

6. The evidence of the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P8 and MOs 1 to

3.

7. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. DWs 1 and 2 were examined on the side of the defence. The trial Court, after hearing the arguments addressed from both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act.

8. Heard Sri.P.K. Mohanan(Palakkad), the learned counsel appearing for the appellant/accused and Smt.

Rekha.S the learned Senior Public Prosecutor appearing for the respondent.

9. The learned counsel for the appellant contended that the prosecution has not succeeded in establishing that the contraband substances allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's Laboratory.

10. The learned Public Prosecutor contended that the prosecution could well establish the charge against the accused.

11. On 29.08.2003 PW1, the Preventive Officer, Ottapalam Excise Range, who was on patrol duty, found the accused at the place of occurrence carrying a plastic can containing 10 litres of illicit arrack. He was arrested from the spot by PW1. He prepared Ext.P3 Seizure Mahazar. PW1 collected 300 ml of arrack from the bottle in possession of the accused and sealed the same. PW2, the Excise Guard, Ottapalam Excise Range, who had accompanied PW1 in the patrol duty, supported the version of PW1. PW3, the independent witness examined to prove the incident proper, did not support the prosecution version. PW4, conducted investigation and submitted final report in the matter.

12. The learned counsel for the accused contended that the prosecution failed to establish the link evidence required for ensuring that the contraband substance stated to have been seized from the place of occurrence eventually r