K. RAMAKRISHNAN, J.

1. The accused in SC No. 68/2002 on the file of Additional Sessions Court (Fast Track-II) Alappuzha is the appellant herein. The appellant was charge sheeted by the Excise Inspector, Kayamkulam Excise Range in Crime No. 18/1999 of that Excise Range under Section 55(a) of the Abkari Act (ought to be under Section 8(1) of the Abkari Act).

2. The case of the prosecution in nutshell was that on 26.4.1999, at about 5.45 pm, the accused was found to be in possession of 8 litres of arrack and found transitting the same along the road in front of Cycle shop of one Razak in Vallikkunnam Village, Kannimel Muri along the road leading to Changankulangara-Kambisserymukku in violation of the provisions of the Abkari Act and thereby he had committed the offence punishable under Section 55(a) of the Abkari Act (ought to be under Section 8(1) of the Abkari Act).

3. After investigation, final report was filed before the Judicial First Class Magistrate's Court, Kayamkulam, where it was taken on file as CP 66/2001. After complying with the formalities, the learned Magistrate committed the case to the Sessions Court, Alappuzha under Section 209 of the Code of Criminal Procedure (hereinafter referred to as the Code). After committal, the case was taken on file by the Sessions Judge as SC 68/2002 and thereafter it was made over to Additional Sessions Court (Adhoc-II) Alappuzha for disposal.

4. When the accused appeared before the court below, after hearing both sides, charge under Section 55(a) of the Abkari Act was framed (ought to be under Section 8(1) of the Abkri Act) and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of prosecution, PWs 1 to 5 were examined and Exts.P1 to P4 and MO1 were marked on their side. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that no article was seized from his possession and he was taken into custody from his stationary shop on 27.4.1999 and falsely implicated in the case. Since the evidence in this case did not warrant an acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. DW1 was examined on his side to prove his case. After considering the evidence on record, the court below found the appellant guilty under Section 55(a) of the Abkari Act and convicted him there under and sentenced him to undergo rigorous imprisonment for two years and also to pay fine of Rs.1,00,000/- in default to undergo Simple Imprisonment for six months. Set off was allowed for the period of detention already undergone by him under Section 428 of the Code. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below.

5. Since the appellant did not appear earlier, Advocate Shri. Ragunandhan was appointed as legal aid counsel. Thereafter, Advocate Shri. Shaj entered appearance and expressed his willingness to argue the case for the appellant. So the appointment of the legal aid counsel was terminated and Advocate Shri. K. Shaj was permitted to argue the case.

6. The counsel for the appellant argued that the evidence of DW1 will go to show that there was no such place of occurrence as claimed by the prosecution from where the alleged seizure was effected. Further out of the two independent witnesses, only one witness was examined and other was not examined and he did not support the case of the prosecution. The court below was not justified in relying on the evidence of interested official witnesses alone to prove the case. Further the arrest memo or forwarding note were not marked. So there is nothing on record to show that they were either produced as well. So according to the learned counsel, the court below was not justified in convicting the appellant for the offence alleged. He is entitled to get acquitt