V.K. Mohanan, J.

1. The first accused in S.C.No.128 of 2008 on the file of the court of Additional Sessions Judge (Ad hoc)-II, Kalpetta, is the appellant. He preferred this appeal challenging the judgment dated 5.2.2013 of the said court by which he is convicted and sentenced for the offence under section 55(a) of the Abkari Act.

2. The case of the prosecution is that on 17.12.2006 at about 6.10 a.m. at Muthanga Excise Check post, the appellant who is A1 was found transporting 540 ltrs. of rectified spirit in the Maruthi Versa car bearing registration No.TN-09AC-2457 owned by A2, from the State of Karnataka to Kerala. Thus, the accused has committed the offence punishable under section 55(a) and 61 of the Kerala Abkari Act. Based upon the above allegation, crime No.102 of 2006 was registered in the Sulthan Bathery Excise Range for the said offences. On completing the investigation, a report was filed in the court of Judicial First Class Magistrate-I, Sulthan Bathery and the learned Magistrate after compliance of section 207 of Cr.P.C., committed the case to the Sessions court as per his order dated 14.2.2008 in C.P.No.67 of 2007 and on receipt of this committal proceedings, S.C.No.128 of 2008 was instituted in the Sessions Court and subsequently made over to the present trial court for disposal. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against A1 under section 55(a) of the Abkari Act and against A2 for the offence punishable under section 61 r/w 55(a) of the Abkari Act. When the said charge read over to them and explained, they denied the charge and pleaded not guilty. Consequently, the trial was proceeded further, during which Pws.1 to 8 were examined and Exts.P1 to P9 were marked from the side of the prosecution. M.O.1 mobile phone was also identified as material object. From the side of the defence, DW1 was examined and Ext.D1 was also marked.

3. The trial court finally found that there is sufficient evidence before the court to hold that A1 was found transporting spirit in a Maruti Versa car at Muthanga check post and accordingly he is convicted for the offence under section 55(a) of the Abkari Act. Whereas, it is found that no criminal liability can be raised upon A2 for the reason that he was the registered owner of the vehicle who sold the same to A1. Accordingly, the 2nd accused is acquitted. On such conviction of A1, he is sentenced to undergo rigorous imprisonment for a period of 5 years and to pay fine Rs.5 lakhs and in default he is directed to undergo simple imprisonment for a period of one year. Set off was allowed. It is the above finding and order of conviction challenged in this appeal at the instance of A1.

4. I have heard Adv.Sri.Mathew Kuriakose, learned counsel for the appellant and the learned Public Prosecutor.

5. Among the prosecution witnesses, PW1 was the then Excise Inspector who is in charge of check post at Muthanga, who detected the crime. During the examination of PW1, Ext.P1 arrest memo and Ext.P2 seizure mahazar were marked through him. PW2 is the then Preventive officer who present at the time of detection of crime. PW3 was working as a mobile mechanic who inspected the vehicle but he turned hostile. PW4 is an independent witness who was an attestor to Ext.P2 seizure mahazar. When PW4 was examined, he supported the prosecution case. Whereas, PW5 another independent witness, who is also an attestor to Ext.P2 seizure mahazar, when examined, turned hostile to the prosecution. PW6 is the then Assistant Excise Inspector attached to Sulthan Bathery Excise Range and when he was examined, Ext.P3 crime and occurrence report, Ext.P4 property list and Ext.P5 copy of forwarding note were marked through him. PW7 is the then Circle Inspector of Excise Range, Mananthavadi, who is the investigating officer and when PW7 was examined, Ext.P6 body mahazar with respect to the vehicle in question, Exts.P7, P7(a) scene mahazars, P8 and