K. Thankappan, J.

The accused in S.C. No.412 of 2001 on the file of the Additional Sessions Court (Trial of Abkari Act Cases), Neyyattinkara is the appellant. He faced trial for the offence punishable under S.58 of the Abkari Act.

2. The prosecution case against the appellant was that on 19.8.1997 while the Assistant Excise Inspector of Amaravila Excise Range was on patrol duty, he found the accused in possession of 5 liters of arrack in a black jerry can at Vellarada Kudappanamoodu-Kuttappu road near Kuttappu junction, Kovilloor desom. To prove the case against the accused, the prosecution examined PWs.1 to 6 and produced Exts.P1 to P7 as well as M.O.1 can. On the side of the defence, DW.1 was examined, but no documents were produced. After closing the prosecution evidence, the accused was questioned under S.313 Cr.P.C. Denying the allegations levelled against him, the accused stated that the excise officials had foisted the case against him. However, after considering the entire evidence, the Trial Court found the accused guilty of the offence charged against him, convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months. Challenging the above conviction and sentence, this appeal is filed.

3. This appeal is filed through the jail authorities and the appellant is defended by a State Brief. This Court heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor.

4. Learned counsel appearing for the appellant has taken the following contentions: (i) the Trial Court went wrong in placing reliance on the evidence of PWs.3, 4 and 5 who were official witnesses since the independent witnesses, PWs.1 and 2, turned hostile to the prosecution, (ii) PW.4, the Assistant Excise Inspector had not followed the provisions of the Abkari Act and the Kerala Excise Manual while detecting the crime and seizing MO.1 can from the accused, as he had not taken any sample from M.O.1 can, (iii) though the independent witnesses who were examined during seizure signed Ext.P1 mahazar, they stated that they did not know the contents of Ext.P1 and (iv) the Trial Court committed serious error in finding that the appellant committed offence punishable under S.58 of the Abkari Act on the basis of Ext.P6 chemical analysis report.

5. The Trial Court mainly relied on the evidence of PWs.4 and 3. PW.4 was the Assistant Excise Inspector who detected the crime. He deposed that on the date of the incident, he saw the accused at the place of occurrence with M.O.1 jerry can containing 5 liters of arrack and that after questioning him, MO.1 was seized in the presence of independent witnesses on preparing Ext.P1 mahazar. This witness further stated that the accused was arrested after issuing Ext.P2 arrest memo and the contraband articles were produced before the Court below. PW.3 was the Preventive Officer who had accompanied PW.4 at the place of occurrence. He supported the version given by PW.4. PWs.1 and 2 were independent witnesses who attested Ext.P1 mahazar, but they turned hostile to the prosecution. PW.5 was the Excise Inspector who continued the investigation and filed the charge sheet against the accused. PW.6 was the Thondi section Clerk of the Judicial First Class Magistrate's Court III, Neyyattinkara who stated that she had received the articles mentioned in Ext.P5 and had taken samples under the orders of the learned Magistrate.

6. The criticism now raised against the evidence of PWs.3 and 4 is that as PWs.1 and 2, the independent witnesses in whose presence MO.1 can was seized turned hostile to the prosecution, their evidence is not sustainable. It is seen that PWs.1 and 2 had admitted their signature in Ext.P1 mahazar. Though these witnesses stated that they signed the document on the instruction of PW.4 without knowing the contents of