This revision is directed against the Judgment dated 08.12.2004 in Crl.A.No.120 of 2004 passed by the learned Additional Sessions Judge, Vizianagaram, whereby and where under the learned Sessions Judge dismissed the appeal and confirmed the judgment passed by the Special Judicial Magistrate of First Class (Excise), Vizianagaram, dated 19.07.2004 in C.C.No.44 of 2004 convicting the petitioner for the offence punishable under Section 7(a) read with 8(e) of the A.P. Prohibition Act (Amended Act) and sentencing him to suffer rigorous imprisonment for one year to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for three months.

2. The petitioner herein shall be referred as accused hereinafter for the sake of convenience.

3. The petitioner herein is Pedakapu Thavudu is arrayed as A4 before the trial Court. The prosecution case in brief is that on 07.02.1997 at about 11.30 A.M. While the Prohibition and Excise Inspector along with staff conducting raids proceeded towards Neelamrajupeta Village and noticed some smoke coming from the bushes at hill area. They went towards hill area, found A1 sitting before a live still, A2 collecting ID arrack from the still, pouring into a can and A3 and A4 coming towards still carrying pots with FJ wash. On seeing the raiding party A3 and A4 tried run away, but they were caught. Then the Prohibition and Excise Inspector sent PW.1 – Head Constable to secure mediators from the village, but after some time, he returned and informed that nobody was willing to act as mediator. Then, search proceedings were conducted and the contraband was seized. The samples were collected under seizure proceedings. The samples were sent to the laboratory and analyst opined that one sample was ID liquor and another sample was FJ wash fit for distillation. After completing investigation, charge sheet was filed against the accused for the offence punishable under Section 7 (a) read with 8(e) of the A.P. Prohibition (Amendment) Act.

4. Since the accused denied the charge, the prosecution examined PWs.1 to 4 and got marked Exs.P.1 to P.3 and MOs 1 to

5. None were examined on behalf of the accused.

6. The case against A1 was abated as he died. The case against A3 was separated as NBW was pending as he was bed ridden and could not be move. Hence, the case against A2 and A4 was proceeded. During the trial, A2 and A4 were found guilty for the charge under Section 7(a) read with 8(e) of the A.P.P. (Amendment) Act. As far as A2 is concerned, the learned Magistrate considering the circumstances that A2 was an old man, aged about 60 years and eking out his livelihood by doing coolie work and that he was regularly attending the Court, extended the benefit under Section 4(1) of the Probation of Offenders Act and released thereunder. When the learned Magistrate questioned A4 i.e. the petitioner herein with regard to the quantum of sentence, the petitioner represented that he is having wife and two children. However, holding that the petitioner was produced on PT warrant and in custody from 24.03.2004 and not entitled for the benefit of P.O. Act, sentenced him to undergo imprisonment for a period of one year and also to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of three months. The remand period undergone by A4 was given set off. Aggrieved by the same, A4 filed an appeal before the Additional Sessions Judge, Vizianagaram in Crl.A.No.120 of 2004. The learned Sessions Judge has also taken the similar view and dismissed the appeal filed by the petitioner/A4. Aggrieved by the same the present appeal is filed.

7. Learned counsel for the petitioner raised two issues. His first submission is that none of the independent witnesses were examined and that the report of the analyst was not marked and in the absence of analyst report the conviction cannot be sustained. The second submission is that when the benefit under the provisions of P.O. Act was extended to the co-accused, the