K. Ramakrishnan, J.

1. The accused in SC No.105/2003 on the file of the Additional Sessions Court (Adhoc-1) Kalpetta is the appellant herein. The appellant was charge sheeted by the Excise Inspector Mananthavady in Crime No.15/1999 of the Excise Range, Mananthavady under Section 55(a) of Abkari Act.

2. The case of the prosecution in nutshell was that on 16.8.1999 at about 2.25 pm, the accused was found to be in possession of 41 bottles of brandy having 180 ml. each intending to be used in Mahe and transporting the same in a bus by name 'Theertham' with Registration No.KL-11-B 4127 from Thalassery side to Manthavady side at Peria 38 in violation of the provisions of the Abkari Act and thereby he had committed offence punishable under Section 55(a) of the Abkari Act.

3. After investigation, final report was filed and it was taken on file before the Judicial First Class Magistrate Court-1Mananthavady where it was taken on file as C.P.No.3/2002. Thereafter the case was committed to Sessions Court, Kalpetta by the learned Magistrate under Section 209 of the Code of Criminal Procedure (hereinafter referred to as the Code). The learned Sessions Judge has taken the case on the file as SC No.105/2003. Thereafter it was made over to the Additional Sessions Court (Adhoc-1) Kalpetta for disposal.

4. When the accused appeared before the court below, after hearing both sides, charge under Sections 55(a) of Abkari Act was framed and the same was read over and explained to him and he pleaded not guilty.

5. In order to prove the case of the prosecution, PWs1 to 10 were examined and MO1 series and MO2 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 in fact since he was found in the bus after consuming alcohol, on a mistaken identity, he has has been taken by the officials implicated him as accused. 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. But no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under Section 55(a) of Abkari Act and convicted him thereunder and sentenced him to undergo Rigorous Imprisonment for one year and also to pay a fine of Rs.1,00,000/-in default to undergo rigorous imprisonment for one month more. Set off was allowed for a period of detention 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.

6. Heard Sri. V.S. Chandrasekharan counsel appearing for the appellant and Smt. Seena Ramakrishnan learned Public Prosecutor appearing for the State.

7. The counsel for the appellant submitted that the entire story of seizure alleged to have been done by the Excise officials appears to be artificial and unbelievable. The independent witnesses though admitted the signature and seizure of Indian Made Foreign Liquor from the bus, they did not even support the case of the prosecution that it was seized from the possession of the accused. The driver and conductor of the bus had stated that one fat person with black complexion had entered the front entry of the bus and placed the same behind the driver's seat and thereafter he went back side and left. The excise officials had seized the same and since the accused was found with the smell of alcohol on suspicion, he was taken and in fact no article was seized from his possession. When independent witnesses did not support the case of the prosecution and they have put up a specific case of seizure then it is not safe to rely on the evidence of the official witnesses alone is the contention raised by the counsel for the appellant. He had also argued that it is no