This appeal is filed against the judgment in S.C.No.295 of 2000 on the file of the Additional Sessions Court (Ad hoc II), Thodupuzha. The appellant faced trial for the offence punishable under Section 55(a) read with Section 55(1) of the Abkari Act.

2. The prosecution case against the appellant—accused was that on 7-6-1998 at about 11 O'clock, the appellant was found in possession of 15 bottles each containing 375 ml. of XXX Rum for the purpose of sale, without any licence or permit as per the provisions of the Abkari Act. To prove the case against the appellant, the prosecution examined P.Ws.1 to 5 and produced Exts.P-1 to P-7 as well as M.Os.1 to 3. No oral or documentary evidence was adduced on the side of the defence. After closing the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. The appellant denied the allegations levelled against him and stated that on the day of the incident while he was waiting at the bus stop, the police came and arrested him and two others after enquiring about a packet that was kept by the side of a shop. The trial court, relying on the evidence adduced by the prosecution, found the appellant guilty under Section 55(a) read with Section 55(1) of the Abkari Act, convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000 and in default of payment of fine, to undergo simple imprisonment for a further period of three months. The appellant was also allowed the benefit under Section 428 Cr.P.C.

3. 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 raised the following contentions: the finding of the trial court that the appellant committed offence punishable under Section 55 (a) read with Section 55 (1) of the Abkari Act is not legally sustainable in the light of the decisions of this Court reported in Surendran v. Excise Inspector 2004 (1) K.L.T. 404 and Sudhepan @ Aniyan v. State of Kerala 2005 (2) K.L.D. (Cri) 631, (ii) the finding of the trial court is based only on the evidence of the official witnesses, P.Ws.2, 3 and 5 as the independent witnesses did not support the prosecution case, (iii) the finding of the trial court that the prosecution succeeded in proving the case against the appellant is not legally sustainable as P.W.3 was not an officer empowered to detect or investigate the crime registered against the appellant as per the provisions of the Abkari Act. To substantiate this contention, learned counsel for the appellant placed reliance on the Government Notification G.O.(P).No.69/96/TD, dated 29-3-1996 (S.R.O.No.321/96) and (iv) the sample produced before the court would not prove that the appellant was found in possession of the contraband articles as there is no evidence with regard to the production of the residue of the contraband articles seized.

5. The question to be considered in this appeal is whether the finding of the trial court that the appellant committed offence punishable under Section 55(a) read with Section 55 (1) of the Abkari Act is legally sustainable or not.

6. The trial court mainly relied on the evidence of P.Ws.3, 4 and 5 to find the appellant—accused guilty of the charges levelled against him. P.W.3 was the Assistant Sub Inspector of Police, Adimali. He stated that on 7-6-1998 while he was on patrol duty, he got information that a person was standing at Kallar town for selling liquor and that when he reached the place of incident, he saw the appellant carrying a plastic kit. He further stated that on examining the plastic kit, it was found to contain 15 bottles, each containing 375 ml. of XXX Rum for the: purpose of sale. This witness further stated that he prepared Ext.P-1 mahazar, took three bottles out of the 15 bottles as samples and seized the remaining bottles and the newspaper contained in the kit for covering the bottles. He further stated