The appellant is the accused in S.C. No. 267 of 2007 on the

file of the III Additional Sessions Court (Adhoc-I), Thodupuzha for

offences punishable under Sections 8(1), 8(2) and 55(g) of the

Kerala Abkari Act.

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2. The case of the prosecution is that on 05.03.2007, at

about 8.30 p.m., the accused persons were found dealing with wash

and arrack and found keeping 170 litres of wash and 2.500 litres of

arrack and utensils for brewing arrack by the side of Kallakuttyyar

and thereby they have committed the aforesaid offences.

3. The learned Sessions Judge, as per judgment dated

15.12.2009, found him guilty of the offences, convicted and

sentenced him to undergo rigorous imprisonment for a period of two

years and to pay a fine of Rs.1,00,000/- for the offences under

Sections 8(1) and 8(2) and simple imprisonment for two years and

to pay a fine of Rs.1,00,000/- for the offence under Section 55(g).

The sentences were directed to run concurrently. Hence, this

appeal.

4. The learned counsel for the appellant contended that the

court below ought to have found that the Excise Party did not

comply with Section 53A of the Abkari Act which mandates that the

prior permission of the Court should be obtained before destroying

the contraband articles. It is also contended that the court below

ought not have convicted the appellant relying upon the sole

testimony of PW3 who acted as the Detecting Officer as well as the

Investigating Officer.

5. Heard the learned counsel for the appellant and the

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learned Public Prosecutor, apart from perusing the record.

6. On 05.03.2007, PW3, the Excise Inspector, Devikulam

along with his parties, on getting information about brewing arrack,

rushed to Kallakuttyyar situated by the side of Old Moonnar-Aluva

road in Mankulam village at a distance of 3 km and 750 meter away

from 50^th mile at about 8 p.m. When they about to reach near the

Kallakuttyar along with two witnesses, they saw light spreading

from burning fire-wood on the right side of the river. Seeing the

torch light lighted by the Excise parties, two persons stood near to

the fire had ran away. However, they could intercept the first

accused/the appellant from the spot. Mos 1 to 3 were seized from

the possession of the appellant.

7.

On the side of prosecution, three witnesses were

examined. PW3 is the detecting Excise Inspector as well as the

Investigating Officer. The Thondy Section Clerk of the Court of

JFCM, Thodupuzha was also examined as PW4. Exts.P1 to P8 were

also marked. MOs 1, 2 and 4 are utensil modified for brewing

arrack and MO3 is a 5 litre can containing arrack. After trial, the

learned Sessions Judge found the appellant guilty of the offences

punishable under Sections 8(1) and (2) and 55(g) of the Abkari Act.

8. MO2 is the aluminum vessel and MO1 is an aluminum

charuvam and a tube which was connected from MO2 vessel to a 5

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litre can was identified as MO3. In the can, 2500 litres of arrack

were found. On inspection, the aluminum charuvam contained 50

litres of boiled wash and an aluminum bucket was found inside the

vessel with a hole in its bottom and a steel plate tide on threads,

which is identified as MO4. 170 litres of wash was also found in an

iron barrel. He took sample of arrack from the can in a 375 ml

bottle and 600 ml of wash was taken from the 100 litre barrel and

the balance wash was destroyed at the spot because of difficulty in

transportation. Then he arrested the first accused and when

questioned him, he confessed that a person who ran away is the

second accused. He took the contraband articles, samples and the

first accused to the office and registered a crime against two

persons alleging the aforesaid offences. The court framed charges

under Sections 8(1) and (2) and 55(g) of the Abkari Act.

9. The main argument advanced by the learned counsel for

the appell