This appeal is at the instance of the sole accused in S.C.No.71/2002 of the Court of Addl.District and Sessions Judge (Adhoc 1), Thodupuzha, who challenges his conviction and sentence under Section 55 (a) of the Abkari Act (for short, 'the Act' only)

2. The prosecution case is that on 14.6.99 at 3 P.M the accused was found in possession of 3 litres of arrack in a plastic can at Vattappara junction at a place called Pothamedu. On the basis of the said allegation, crime No.8/99 of Devikukulam Excise Range was registered. After investigation, a final report was filed in the Court of Judicial First Class Magistrate, Devikulam, whereupon C.P.No.3/2001 was initiated and by order dated 6.10.2001, the learned Magistrate committed the case to the Sessions Court, Thodupuzha where the case was instituted as S.C.No.71/2002, which was made over to the court of Assistant Sessions Judge, but subsequently, it was transferred by the Sessions Court to the trial court for disposal. During the course of trial, PWs 1 to 3 were examined on the side of the prosecution and Exts.P1 to P5 were marked as documentary evidence. M.O-1 material object was also identified and marked. The defence's stand was total denial. No evidence was adduced from the side of the defence. Finally, on the basis of the evidence and materials on record, the trial court found that the accused is guilty of the offence under Section 55 (a) of the Act and accordingly he is sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-(one lakh) with a default sentence of simple imprisonment for three months. It is the above judgment and order of conviction and sentence challenged in this appeal.

3. I have heard Sri Padayattee Yeldo, the learned counsel appearing for the appellant and also the learned Public Prosecutor.

4. The learned counsel vehemently argued that the judgment of the trial court is absolutely illegal, improper and irregular and liable to be set aside. Though several factual grounds are taken in the memorandum of appeal, during the submissions the learned counsel confined his main argument to the competency and jurisdiction of PW1 to effect the seizure and arrest of the appellant/ accused. In support of the above argument, the counsel invited my attention to Section 70 of the Act and submitted that no notification has been issued by the Department or the Government conferring the requisite power on the Assistant Excise Inspectors.

5. The point raised by the counsel assumes prime importance and as the same is capable to shake the very basis of the prosecution case, I am of the opinion that the said point can be considered as the first issue in this matter.

6. The learned counsel for the appellant emphatically submitted that PW1, being the Assistant Excise Inspector, has no powers under Sections 40 to 53 of the Act by virtue of Section 4(d) of the above Act. It is also his contention that there is no notification or Government Order, conferring such powers on Assistant Excise Inspector.

7. On the other hand, learned Public Prosecutor submitted that the Government has issued notification conferring powers upon the excise officials including the Assistant Excise Inspectors. The learned Public Prosecutor submitted that when SRO Nos.233/67 and 234/67 were issued, vide G.O.MS. No.356/67/Rev., dated 10th August 1967, the post of Assistant Excise Inspector was not created in the Excise Department and, therefore, in the said notifications, the powers and duties of Assistant Excise Inspector were not mentioned. It is the further submission that the post of Assistant Excise Inspector was created with effect from 10.10.1985, and the powers and duties of Assistant Excise Inspectors were fixed and assigned only with effect from 12.10.88 vide G.O.(MS) 142/88 dated 12.10.88. The learned Public Prosecutor took me through the said Government Order and he made available to me a copy of the same for perusal. It is the further conte