The appellant faced trial for an offence under Section 55(a) of the Abkari Act on the allegation that he was found in possession of 35 liters of illicit arrack on 29.7.1999 at a place called Ariyappady in Mugu village at Kasaragod within the limits of Badiaduka Police Station. To prove the case against the appellant, prosecution examined three witnesses and relied on Exts.P1 to P6. On closing the prosecution evidence, when the appellant was questioned under Section 313 of the Code, he had stated that he is innocent and the case was foisted against him on the instigation of a police constable-PW1, who is having some enmity towards him. But, the trial court by the impugned judgment found the appellant guilty under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced to undergo R.I for three and a half years and to pay a fine of Rs.One lakh with default sentence of payment of fine, to undergo R.I for three months more under Section 55(1) of the Act.

The counsel appearing for the appellant challenges the judgment of the trial court on various grounds. The counsel submits that the trial court committed serious error in finding the appellant guilty of the charge only on the evidence of two police officers out of whom, the Sub Inspector concerned was the detecting officer as there was no independence evidence to support the evidence of these official witnesses. Secondly, it is submitted that PW3 - the Sub Inspector of Police, who detected and investigated the crime, had violated the mandatory provisions of the Abkari Act and the Kerala Excise Manual with regard to the procedure to be followed in detecting a crime under the Abkari Act and making seizure of any contraband article or arrest of the appellant as no witness has been examined to prove either seizure of the contraband article or arrest. The counsel further submits that the contraband article alleged to have been seized by PW3 as per Ext.P1 seizure mahazar and the sample alleged to have been taken were not produced before the court in time as there is delay of more than ten days in producing the same before the court and that the delay is not properly explained. The counsel, further, submits that reliance placed by the trial court on Ext.P6 chemical report to find that the contraband seized by PW3 is arrack as Ext.P6 shows that the sample analysed by the chemical analyst was Karnataka made arrack. Lastly, it is submitted that either the residue or Kannas in which the alleged arrack kept by the appellant, was not produced before the court.

The prosecution case as per the evidence of Pws 1 and 3 is that on 29.7.1999 while PW3 the Sub Inspector and other police officials were on law and order duty, they got information that the appellant had kept arrack under a cashew nut tree at a place called Ariyappady in Mugu village and on getting that information, PW3, the Sub Inspector and PW1, the Police Constable and other police officials reached at the place of occurrence at about 7.30 p.m. and they searched for the kannas in which the arrack was kept by the appellant.

On searching the bushes, the police party seen a white kannas of 35 liters capacity as placed under a cashew nut tree and after seeing that kannas, they hide themselves in the bushes and about half an hour, the appellant came to the scene and he took the kannas on his shoulder. Immediately, PW3 and other police officials went to the appellant and kannas was seized on preparing Ext.P1 seizure mahazar in the presence of two witnesses and the appellant was also arrested at the spot giving arrest memo and thereafter the appellant, the kannas and the sample bottles taken for analysis, were brought to the police station and a crime was registered against the appellant.

Subsequently, as per Ext.P6 report, it was revealed that the sample analysed contained 94.65 and 94.86% ethyl alcohol by volume in both the samples. On the basis of the above report and on completion of the investigation, the case