In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the accused in S.C.No.262/2001 on the file of the Addl. Sessions Court (Fast Track No.II), Thiruvananthapuram, challenges the conviction entered and the sentence passed against him for an offence punishable under sec.55 (a) of the Abkari Act.

2. The case of the prosecution is that on 30.6.2000 at about 12 noon the accused was found in possession of 10 litres of illicit arrack in a black jerry can in Malayamtheri - Paramukku road ner the rubber plantation of one Ayyappan Pillai in Kottackkakam muri of Aryanadu village and that the accused has thereby committed offences punishable under secs.8, 55(a) & (h) and 58 of the Abkari Act.

3. On the accused pleading not guilty to the charge framed against him by the court below for an offence punishable under sec.55(a) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined six witnesses as PWs.1 to 6 and got marked five documents as Exts.P1 to P5 and one material object as M.O.1.

4. After the close of the prosecution evidence, the accused was questioned under sec.313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence.

5. He had the following to submit before court:-

He is a person who is eking his livelihood by doing coolie work. When he was in the house of his friend, the police had come there in search of his friend. Seeing him in the house, the police asked him as to why he was there. He was then taken to the police station stating that he should be knowing the whereabouts of his friend. He is innocent.

6. Since the court below did not consider this a fit case for recording an order of acquittal under sec.232 Cr.P.C., the accused was called upon to enter on his defence and to adduce any evidence which he might have in support thereof. The accused did not adduce any defence evidence.

7. The learned Addl. Sessions Judge, after trial, as per judgment dt.15.6.2006 found the appellant guilty of the offence punishable under sec.55(a) of the Abkari Act and sentenced him to undergo simple imprisonment for 1= years and to pay a fine of Rs.1 lakh and, on default to pay the fine, to suffer simple imprisonment for 3 months. It is the said judgment which is assailed in this appeal.

8. I heard Adv. Smt. Sangeetha Lakshmana, the learned counsel who defended the appellant on State Brief, and Adv. Sri K.S. Sivakumar, the learned Public Prosecutor who defended the State.

9. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not?

THE POINT

10. P.Ws.1 to 3 are the independent witnesses to the arrest, search and seizure of whom PW.1 is an attestor to Ext.P1 mahazar as well. But all of them turned disloyal to the prosecution and did not support the prosecution. PW.4 is the police constable who accompanied the detecting officer while the latter went on patrol duty. PW.5 is the Asst. Sub Inspector of Aryanadu Police Station who detected the offence. He was proceeding in his police jeep on patrol duty in the company of other policemen including PW.4. PW.6 is the Sub Inspector of Aryanadu Police Station who, after completing the investigation, laid the charge before court.

11. After an anxious re-appraisal of the oral and documentary evidence in the case and after hearing both sides, I am not satisfied that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt. No doubt, PWs.1 to 3 who are the independent witnesses to the arrest, search and seizure turned hostile to the prosecution. The courts are not unfamiliar with such witnesses. If the testimony of the detecting officer is credible and free from blemishes, the same can be accepted in proof of the arrest, search an