The interesting question coming up for judicial resolution in this case is as to whether the Excise Officers of the State Excise Department could be treated as "police officers" within the meaning of Sec. 25 of the Indian Evidence Act, 1872.

2. In this appeal filed under Section 374 of the Code of Civil Procedure, 1973 (Cr.P.C. for short), the appellant who was the sole accused in S.C. No. 351 of 1999 on the file of the Additional Sessions Court (Adhoc), Kalpetta, challenges the conviction entered and the sentence passed against the appellant for an offence punishable under Section 55 (a) of the Kerala Abkari Act.

3. The case of the prosecution can be summarised as follows:-

On 22.07.1997, at about 5.30 p.m., behind Perumbadapothiyil House belonging the accused by name Joseph alias Vellimala Pappachan at Vandikadavu in Padichira village of Sulthan Bathery taluk and abutting the Kanaram river , the accused was found in possession of 45 litres of illicit arrack. Since the said possession was in contravention of the provisions of the Abkari Act, the accused has thereby committed an offence punishable under Section 55(a) of the Abkari Act.

4. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 7 witnesses as P.Ws 1 to 7 and got marked 4 documents as Exts. P1 to P4 and 3 material objects as Mos. 1 to 3.

5. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) 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 made the following submissions before court:-

He was not present when the alleged seizure of arrack took place. The excise people were bringing the cans containing the arrack into his tea shop after taking the same from the vicinity of the river. When the excise people attempted to arrest his wife and daughter, the neighbours obstructed. He appeared before the excise inspector on the next day. He is innocent in this case.

6. Since the case was not a case of no evidence for the prosecution, the court below did not record an order of acquittal under Section 232 Cr.P.C. The appellant did not adduce any defence evidence when called upon to enter on his defence.

7. The learned Addl. Sessions Judge, after trial, as per judgment dated 13.01.2003 found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and on default to pay the fine, to suffer simple imprisonment for three months. It is the said judgment which is assailed in this appeal.

8. I heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor.

9. After a careful reappraisal of the oral and documentary evidence in the case, I am not satisfied that the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt.

10. PW1 is the Excise Inspector, Sulthan Bathery Excise Range who allegedly detected the offence. PW2 was the Excise Preventive Officer who accompanied PW1. PWs 3 and 4 are the independent witnesses to Ext.P1 seizure mahazar. Both of them turned hostile to the prosecution. PW5 is the attestor to Ext.P2 scene mahazar. PW6 was the Excise Inspector who conducted the investigation by preparing Ext.P2 scene mahazar and questioning the witnesses. PW7 was the Excise Inspector who verified the investigation conducted by PW6 and filed the final report before the Judicial Magistrate of the First Class-I, (JFCM-I for short), Sulthan Bathery under Section 173 (2) Cr.P.C.

11. What is unravelled through the oral and documentary evidence adduced by the prosecution is the following:-

On 22.07.1997, PW1 (Excise Inspector) along with his excise party incl