The prosecution must prove the accused's identity as the person responsible for the contraband article and the exclusive ownership or possession of the place from which the article was seized.

1. The appellant, accused in S.C.No.398/2005 on the file of the Additional Sessions Judge (Adhoc)II, Kalpetta, faced trial for the offences punishable under Sections 55(b),(g) and 58 of the Abkari Act on the allegation that he was found in distilling illicit arrack and also in possession of 5.5 liters of arrack on 24.8.2004 and thereby committed the above offences. To prove the prosecution allegation, prosecution examined PWs 1 to 8 and relied on Exts.P1 to P7. MOs 1 to 6 were also produced. On closing the prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure. The appellant denied the entire prosecution and had stated that he is innocent and he was at Coorg and when he came back from Coorg on 4.10.2005, he was arrested by the police. Relying on the evidence adduced by the prosecution, the trial court found the appellant guilty under Sections 55(b) and (g) of the Abkari Act and he was convicted thereunder and sentenced to undergo R.I for five CRL.A.NO.1581/06 2 years and to pay a fine of Rupees One Lakh with default sentence of payment of fine, further simple imprisonment for a period of six months more. The trial court also allowed the benefit of Section 428 of the Cr.P.C to the appellant. The conviction and sentence awarded against the appellant are assailed in the appeal.

2. Since the appeal is filed through the jail authorities and the appellant is not defended by any counsel of his own choice, a member from the State brief panel has been appointed to argue the appeal for and on behalf of the appellant. This Court heard the learned counsel appearing for the appellant as well as the Public Prosecutor. The counsel appearing for the appellant had taken two contentions specifically before this Court in challenging the judgment of the trial court. Firstly, the counsel submits that the trial court miserably failed to note that the prosecution has not succeeded in proving the identity of the appellant as the person responsible for keeping the contraband article. Secondly, the learned counsel submits that the evidence of the prosecution witnesses cannot be relied on to prove that the CRL.A.NO.1581/06 3 shed from which the contraband article alleged to have been seized by the police belongs to the appellant and the appellant is in exclusive possession of the shed and he is residing in that shed. The prosecution tried to prove the case against the appellant relying on the evidence of Pws 1, 2,4 and 7 with regard to seizure of the contraband article from the shed. PW7 is the detecting officer, who had deposed before the court that on 24.8.2004 while himself, PW4 and other police officers were returning from attending a public programme, he received a reliable information that the appellant is distilling arrack in the house at Aarthavayal in Cheeral amsom and on receiving such an information, PW7 and other officers went near the house and when they reached the house, they have seen that somebody was running out of the house through a nearby lane and as informed by the witness, who had already accompanied him, PW7 identified the person jumped out of the house was the appellant. This witness has further stated that himself and the police party along with Pws 1 and 2 went to the shed on preparing a search memo to search the house and sending the same to the court, PW7 and the other police officials along with the witnesses went CRL.A.NO.1581/06 4 inside the shed. It was seen that, in the kitchen room of the shed an aluminum pot was on the hearth and two aluminum vessels were also on the pot and a pipe was also connected with the aluminum pot. It was seen on further verification that the aluminum pot contained wash for preparing arrack and a black can was kept near by the hearth. On further verification, it was seen that the can contained 5.5 liters of arrack. This witness has further stated that on preparing Ext.P1 seizure mahazar, he had seized the aluminum pot and other vessels and