JUDGMENT

This is an appeal preferred by the first accused, who is the convict in S.C.No.1032 of 2009 of the Additional District and Sessions Court, Fast Track-I, Thrissur. He along with the second accused had faced trial for offence punishable under Section 8(1) and (2) of the Abkari Act. After trial the second accused was found not guilty and acquitted by the trial court and the appellant, the first accused, was found guilty and convicted. That finding is now challenged in this appeal preferred under Section 374(2) of the Criminal Procedure Code, hereinafter referred to as the Cr.P.C.

2. The prosecution allegation is briefly as follows :-

On 16.10.2007 at about 06:30 p.m. while the Preventive Officer of the Excise office, Wadakkanchery and party were engaged in routine patrol duty, on the Erumapetti-Mookkilpeedika road, they were proceeding from east to west, at Parapuram desom in Kadangodu village in Thalappilly taluk, when they reached in front of the residence of Kamalakshi Amma of Puthoor house, in a small watercourse flowing by the side of the road opposite to that house, two persons were found, at a distance, dealing with some matter. One of them was found pouring some liquid from one jar to the jar carried by the other person. Seeing the exercise party both of them took to their heels after abandoning the jars carried by them. The excise officials chased them and one of them was caught after running for sometime. The first accused appellant was caught and was brought back to the place of occurrence. The other person could not be nabbed at that time. In the presence of the appellant and other independent witnesses the contents of both the jars were tested by smelling and tasting and they realised that it is arrack.

3. After collecting samples from both the jars the appellant was arrested from the place in the presence of independent occurrence witnesses; the contraband items were seized under a mahazar and thereafter the arrested person along the contraband were handed over to the Excise Inspector, Wadakkanchery. According to the prosecution, on that basis, Crime 63/2007 of Wadakkanchery Excise Range was registered and the accused/the appellant and the items were produced before the Judicial First Class Magistrate, Wadakkanchery on the following day itself. The sample items were sent for chemical examination report through a forwarding note and on receipt of the report and after concluding investigation, an offence under Section 8(1) and (2) and Section 55(a) of the Abkari Act was revealed. On that basis the final report was laid before the Judicial First Class Magistrate, Wadakkanchery. The Judicial First Class Magistrate, Wadakkanchery took cognizance of offence under Section 8(1) & (2) and Section 55(a) of the Abkari Act, CP 72/2009 was registered and after completing procedural formalities, since a case exclusively triable by the Court of Session was revealed, the case was committed to the Court of Session, Thrissur. The Sessions Judge made over the case to the trial court and thus the matter came before the trial court.

4. After hearing counsel on both sides, when the charge was framed, read over and explained in Malayalam alleging offence punishable under Section 8(1) and (2) of the Abkari Act, both the accused pleaded not guilty. They were on bail. They were defended by counsel of their choice.

5. Five witnesses were examined on the side of the prosecution.

Exts.P1 to P9 were also marked. On conclusion of prosecution evidence, when examined under Section 313(1)(b) Cr.P.C., both the accused reiterated their innocence and denied the incriminating materials. Thereafter, since the case was not acquittable under Section 232 Cr.P.C., the learned Additional Sessions Judge called upon the accused persons to enter upon their evidence in defence. But no evidence was adduced. After hearing counsel on both sides, by the impugned judgment dated 02.06.2011, the second accused was found not guilty giving the benefit of doubt and he