Possession of materials alone is insufficient for conviction under S.55(g) of Abkari Act without proving intent to manufacture liquor.

1. Challenge in this appeal is to the judgment dated 02/12/2008, passed by the Additional Sessions Judge - II, Kalpetta, in SC.No.13/2006.

2. By the impugned judgment, the appellant (accused No.2) was convicted of the offence punishable under S.55(g) of the Abkari Act .

3. The prosecution case is that, on 10/11/2003 at about 04.00 P.m., the appellant and the other accused were found transporting 250 kg of Jaggery, 1½ kg of Navasaram and 200 grams of Tatiripoovu through the Chooramal - Kappikadu estate road for the purpose of distilling arrack. On 17/11/2003, based on the confession given by the appellant, the Excise Inspector, Kalpetta (PW1) recovered wash and other utensils from a nearby rocky area.

4. After completion of the investigation, the final report was submitted against the appellant, and the other accused (A1 and A3) for the offence punishable under S.55(g) of the Abkari Act before the Chief Judicial Magistrate Court, Kalpetta.

5. The case was committed to the Sessions Court, Kalpetta, from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under S.55(g) of the Abkari Act . The charge against accused No.3 abated on his death during the trial. The appellant and accused No.1 faced trial. They pleaded not guilty, and therefore, they came to be tried by the Trial Court for the aforesaid offence.

6. The evidence for the prosecution consists of the oral evidence of PWs.1 to 7, Exts.P1 to P14, and MOs.1 to 10.

7. After the closure of the evidence on behalf of the prosecution, the statements of the accused under S.313 Cr.P.C were recorded. They pleaded innocence. The Trial Court heard the matter under S.232 Cr.P.C. and found that there is evidence against the accused, and hence they were called upon to enter on their defence and to adduce any evidence, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found that the appellant is guilty of the offence under S.55(g) of the Abkari Act and he was convicted thereunder. Accused No.1 was acquitted of the charge. The appellant / accused No.2 was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-.

8. Heard Smt. Celine Joseph, the learned counsel appearing for the appellant, and Sri. M. C. Ashi, the learned Public Prosecutor, appearing for the respondent.

9. The learned counsel for the appellant / accused contended that the prosecution failed to establish the charge against the accused.

10. Per contra, the learned Public Prosecutor submitted that the prosecution could establish the charge against the accused.

11. The point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.

12. PW1, the Excise Inspector, Kalpetta Range, on 10/11/2003 at 04.00 p.m., inspected a jeep bearing registration No.KL10D / 7610 at Chooralmala. The appellant and the other accused were found in the jeep. On inspection, PW1 found that 250 kg of Jaggery in 5 gunny bags, 1½ kg of Ammonium Chloride, and 200 grams of Tatiripoovu were stored in the jeep. PW1 gave evidence that the accused confessed that those articles were transported for the purpose of distilling arrack, and hence he seized those articles as per Ext.P5 seizure mahazar. PW1 also searched the residence of accused No.3 as per Ext. P4 search list, but no incriminating materials were recovered. PW1 gave evidence that the accused had confessed to him that they had concealed wash in a rocky area in