V. Ramkumar, J.

The sole accused in S.C.788 on the file of the Additional Sessions Court, Fast Track I, Thiruvananthapuram for an offence punishable under S.55(a) of the Abkari Act challenges the conviction entered and the sentence passed against him by the court below for the aforesaid offence.

2. The case of the prosecution is that on 9.2.1998 at 5 p.m. the accused was found in possession of 2 1/2 litres of illicit arrack.

3. The facts as unravelled by the prosecution evidence can be summarised as follows:

On 9.2.1998 at 5 p.m., PW 1 - Excise Preventive Officer attached to the Enforcement and Anti Narcotic Squad, Thiruvananthapuram and his party including PW2 (an Excise Guard) were proceeding on patrol duty. When they reached near Murukkumpuzha railway gate in Panachamoodu - Murukkumpuzha kadavu road, they saw the accused coming from opposite direction with a black can of 2 1/2 liters capacity. On seeing the Excise party, the accused became perplexed and attempted to make good his escape. He was however, restrained by the Excise party and the can found in his possession was seized. On examining the contents of the can, it was found to contain illicit arrack. The identity of the contents was confirmed by PW1 through smell and taste. Ext.P1 contemporary mahazar was prepared from the spot itself. CWs.1 and 2 were the independent witnesses to the said mahazar. Of them, CW1 was dead and CW2 was not available in the station and hence not examined before court. The can and the seized documents were produced before PW.3 - Excise Inspector, Kazhakuttom, who registered Ext.P4 crime and occurrence report. The accused was thereafter produced before court along with the remand report. During the course of investigation, PW3 filed a requisition before the committal court requesting the court to take sample from the can and forward the same for chemical analysis. Ext.P5 report of chemical analysis shows that the sample contained 26.02 per cent by volume of ethyl alcohol. A complaint was filed by PW4, the successor Excise inspector placing the accused for trial for an offence punishable under S.55(a) of the Abkari Act.

4. After the close of the prosecution evidence, the accused was questioned under S.313(1)(b) of 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. He stated that the real offender, who was carrying the contraband liquor had successfully made good his escape and that he was falsely implicated in this case.

5. Since the trial Judge did not find this a fit case for recording an order of acquittal under S.232 of 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 evidence.

6. The learned Additional Sessions Judge, after trial, as per judgment dated 7.11.2005, found the appellant guilty of the offence and sentenced him to rigorous imprisonment for 1 1/2 years and to pay a fine of Rs.1 lakh and on default of fine, to undergo rigorous imprisonment for six months. It is the said judgment which is assailed in this appeal.

7. I heard Advocate Smt.Sangeetha Lakshmana, the learned counsel who defended the appellant on State Brief and Advocate Shri.Sivakumar, the learned Public Prosecutor, who defended the State.

8. As mentioned earlier, P.Ws. 1 and 2 are the members of Excise party, who detected the offence while on patrol duty. PW3 is the Excise Inspector, who registered the crime and produced the accused and the seizure documents before court. PW4 is the Excise Inspector, who filed the complaint before court.

9. It is true that the two independent attestors to Ext.P1 mahazar prepared by PW1 from the spot itself, have not been examined by the prosecution. One of those independent witnesses was no more anti the other witness was not available. But the evidence of PWs.1 and 2 is quite credible to show that the