Judgment : 1. The appellant was convicted for offence punishable under section 55 (a) of Abkari Act and he was sentenced to undergo rigorous imprisonment for seven years and to pay Rs. 1,00,000/- as fine and in default he was sentenced to undergo simple imprisonment for one year. He was the 1st accused. The 2nd accused was acquitted by the trial Court. 2. The gist of the prosecution case is situated thus: The appellant was the driver of the lorry bearing no. KL-5 A 8197 of which the 2nd accused was the cleaner. On 24.2.2000, at about 4.15 pm, the lorry KL-5 A 8197 was stopped by PW3, the Sub Inspector, in front of Kasba Police Station, Palakkad. The lorry was driven by the appellant. A2, the cleaner was also in the cabin of the lorry. The lorry was then examined by PW3 and PW2, the head constable and other officials. On inspection PW3, the Sub Inspector of Police and his officials could find 218 plastic cans of a capacity of 35 litres each, having been kept in the platform of the lorry and all those plastic cans contained spirit. Each can contained about 33 litres. Those plastic cans were kept in layers and were seen concealed by placing on those cans plywood sheets on the top of which 34 gunny bags filled with paddy husk were kept. By smell and taste PWS3 and others could ensure that the plastic cans contained spirit. PW3, thereafter, took four samples each measuring 180 ml each, from each plastic can and all those samples (872 in number) were packed and sealed in the presence of the accused and the witnesses. The plastic cans containing the remaining spirit and other properties were seized. Both accused were arrested then and there for which Exhibit P2 series, arrest memos were prepared on which the signatures of the accused were obtained. All the contraband articles including the samples mentioned above were seized by PW3 as per Exhibit P1 seizure mahazar, which was prepared at 6.30 pm. 3. Based on Exhibit P1 and other materials FIR was registered against the appellant and the other accused. After conducting investigation charge sheet was laid by PW4, the Sub Inspector, Successor in office of PW3. On all the sample bottles, labels containing the signatures of the accused were obtained. The accused were produced before the Magistrate immediately on the next day. Based on Exhibit P1 and other materials FIR was registered against the appellant and the other accused. After conducting investigation charge sheet was laid by PW4, the Sub Inspector, Successor in office of PW3. On all the sample bottles, labels containing the signatures of the accused were obtained. The accused were produced before the Magistrate immediately on the next day. The seizure mahazar, FIR and other records were also produced before the Magistrate on 25.2.2000. Out of the four samples each taken from 218 plastic cans as aforestated, one set of samples were available in Court at the time of trial. All the 218 plastic cans, containing the remaining spirit, were sealed and after obtaining orders from the learned Magistrate all those plastic cans were kept in another building. Since there were large number of plastic cans containing spirit all those plastic cans were not in a position to be brought to the Court room at the time of trial. Hence, as directed by the Court, the witnesses, in the presence of defence counsel, went to the property room, found those material objects having been kept intact in the same position. 4. PWs 1 to 4 were examined and Exhibits P1 to P5 were marked. One set of sample bottles, 218 in number, were marked as M.O.1 series. 5. Evidence given by PW3, the Sub Inspector of Police, who detected the case, which was corroborated by PW2, the Head Constable and which was to a certain extent further corroborated by the independent witness (PW1) was accepted by the learned Additional Sessions Judge to find the appellant guilty. The appellant was thus convicted and sentenced as mentioned above. 6. The learned counsel for the appellant submits that though the contraband articles were seized on 24.2.2000, those properties were produce before the Court only on 6.4.2000 and no proper explanation was offered by the prosecution for the delay in producing the seized articles before the Court and as such, because of the non compliance of the mandatory provisions, the appellant is entitled to be acquitted. That no mention was made that seals were affixed on the sample bottles also should have been considered by the trial Court to hold that the prosecution case is untrue, it is further argued. That no mention was made that seals were affixed on the sample bottles also should have been considered by the trial Court to hold that the prosecution case is untrue, it is further argued. Though the GCR was state to have been seized by PW3, it was not produced before the Court and so there is no acceptable evidence to show that the appellant was the driver of the vehicle or that he had illegally transported spirit and so the conviction and sentence passed against the appellant are unsustainable, argues the counsel. It is also argued that though the section mandates that both witnesses to the seizure should be independent witnesses other than the officials of the Excise, Police and Revenue departments only the signature of one independent witness was obtained on Exhibit P1, whereas the other witness is the Police Constable himself and so for non compliance of section 36 also the appellant is entitled to be acquitted. 7. The points for consideration are: (i) whether the lorry, aforesaid, contained plastic cans containing spirit and whether contraband articles were seized by PW3 at the time and place as alleged by the prosecution? (ii) Whether the appellant was arrested at the said time and place? (iii) Whether the sampling was done and seizure was effected properly and whether there was any infraction of any provision so as to vitiate the conviction? Points (i) to (iii) 8. The evidence given by PW3, the Sub Inspector of Police, would show that on 24.2.2000 at about 4.15 pm he got reliable information that from Coimbatore side a lorry containing spirit was coming. PW3 along with other officials stood on road in front of the police station. That compound is abutting the road. After a while the lorry reached. It was directed to be stopped. It was stopped. The appellant was the driver of that lorry. Cleaner was also seen in the cabin of that lorry. Both of them got down, Thereafter, the lorry was examined. There were 218 plastic cans of capacity of 35 litres having been kept in the platform of that lorry. By the smell and taste, PW3 and others could confirm that those plastic cans contained spirit. Evidence would show that the plastic cans which were covered and concealed by keeping bags of paddy husk upon them were unloaded with the help of PW!, the unloading worker and others. 9. By the smell and taste, PW3 and others could confirm that those plastic cans contained spirit. Evidence would show that the plastic cans which were covered and concealed by keeping bags of paddy husk upon them were unloaded with the help of PW!, the unloading worker and others. 9. There is also evidence to show that from each plastic can four samples measuring 150 ml each in bottles of 180 ml each were taken. All those sample bottles, [219 x 4 = 872 bottles], were packed and sealed and on the sample bottles, the labels containing the signatures of the accused were also affixed. It was also stated by them that all the 218 plastic cans containing the remaining spirit were also sealed then and there. The accused were arrested. Exhibit P2 series, would saw that the arrest memos were signed by the accused. The fact that the signature of the appellant is seen on the arrest memo was not challenged by the defence. It was contended that the signatures of the witnesses were not obtained on the arrest memos. It is important to note that though the vehicle was intercepted at about 4.15 pm, the time taken for inspecting the lorry and for unloading all those plastic cans and the time required for taking four samples each from those 218 plastic cans also may have to be born in mind by the Court. 10. The learned Public Prosecutor submits that though the unloading workers helped in unloading the plastic cans from the lorry it cannot be said that all those persons could be detained by the police till the entire process is over, which took hours together. Therefore, at the time when the arrest memos were signed by the accused, the witnesses were not present, cannot in any way affect the factum of arrest of those accused persons. It is not a case where the accused had any grievance pointing out violation of their rights. The contention advanced by the appellant that since the signatures of the witnesses were not obtained on the arrest memo it has to be found that the appellant was not arrested at all, is found to be bereft of any merit. The appellant and other accused were arrested and they were produced before the Magistrate and were remanded. 11. The contention advanced by the appellant that since the signatures of the witnesses were not obtained on the arrest memo it has to be found that the appellant was not arrested at all, is found to be bereft of any merit. The appellant and other accused were arrested and they were produced before the Magistrate and were remanded. 11. The learned Public Prosecutor submits that when such a huge quantity in such plastic cans were carried in the lorry and since samples had to be taken from each of those plastic cans and all those sample bottles and the plastic cans had to be packed and sealed, slight lapses may occur. It is a difficult task indeed. Such human errors, if any, cannot be projected out of proportion to hold that the case of detection unfolded by the prosecution is untrue. An attempt was made by the defence to contend that all the plastic cans were not sealed then and there but were taken to the police station. It is pertinent to note that the lorry was stopped on the road which is in front of the police station and as such when it is state the plastic cans were taken to the compound of the police station it actually means that the plastic cans were taken out of the lorry and kept in the compound nearby which happened to be the compound of the police station. Therefore, there is no inconsistency regarding that aspect. 12. Evidence would clearly show that the spirit was poured from the plastic can into a bucket and it was from that bucket it was taken in the sample bottles for the purpose of sampling. That was the only way it could be done. There is no illegality or irregularity in it. It was argued that the bucket and the sample bottles should have been made dry before the alleged spirit was taken as sample. There is nothing to show that the bucket was not dry or the sample bottles were not dry. It was also contended that there is no evidence to show from where all the 872 sample bottles of 180 ml each were brought. Those are not matters germane for consideration nor will it affect the credibility of the prosecution case. There is unimpeachable evidence to show that 218 plastic cans of the capacity aforestated, contained spirit. It was also contended that there is no evidence to show from where all the 872 sample bottles of 180 ml each were brought. Those are not matters germane for consideration nor will it affect the credibility of the prosecution case. There is unimpeachable evidence to show that 218 plastic cans of the capacity aforestated, contained spirit. PW#, PW2 and others got it confirmed by smell and taste also. 13. PW1 is the head load worker who has stated that he had seen the lorry having been stopped and that the appellant, who was stated to be the driver, and the other person who was stated to be the cleaner were also there by the side of the lorry which was stopped in front of the police station. He has stated that he had also helped the police in unloading the plastic cans containing the spirit, mentioned earlier. It is pointed out by the learned counsel for the appellant that PW3, the Sub inspector has stated that he did not make use of the service of PW1 for the purpose of unloading the plastic cans. It might presumably be stated because of lapse of memory. Evidence of PW! On that point is to be preferred to. 14. PW2, the Head Constable, has stated that there were three other persons also, who helped in unloading the cans mentioned above. There were, altogether, 218 plastic cans each of 35 litre capacity. The fact that PW1 did not speak with regard to the method of sampling, labeling etc, is not of much relevance since he has not expected to know the procedure for sampling, packing, labelling etc. But his evidence corroborates the testimony of PWs 2 and 3 that the lorry was stopped in front of that police station which is abutting the national highway and that spirit cans were brought down from the lorry to the police station compound. 15. It was contended that there is inconsistency as to the place from where samples were taken from the spirit cans. Since the station compound is just abutting the national highway, the so called inconsistency, as to whether it was done keeping the cans on the road or whether it was had from the police station compound, can not, in any way, affect the credibility of the prosecution case. 16. Since the station compound is just abutting the national highway, the so called inconsistency, as to whether it was done keeping the cans on the road or whether it was had from the police station compound, can not, in any way, affect the credibility of the prosecution case. 16. It was testified by PW1 that the spirit cans were found kept on the platform of the lorry and it was those spirit cans which were brought down from the lorry . It was also testified by him that it could be discerned by smell that the cans contained spirit. That exactly was the evidence given by PWs 2 and 3 also. It was asserted by PW1 that he had actually seen the police taking the sample from the spirit cans, mentioned above. It was also stated by him that it was using the wax seals the sample bottles were sealed and that the sample bottles were of a capacity of 180 ml. The evidence given by PW1 was attempted to be assailed by the defence contending that he used to unload articles brought to that police station also. PW1 candidly admitted that fact. But on that ground it cannot be said that PW1 is an interested witness. Being a head load worker he may attend loading or unloading work whenever and wherever he is called. The learned sessions judge, who had the opportunity to watch the demeanour of the witness, had found him credible. On a thorough scrutiny of his evidence, I find no reason to hold otherwise. 17. Arguments were also addressed by the learned counsel for the appellant pointing out the non production of G.C.R. (Goods Carrier Record,) which was found in the lorry. It was specifically mentioned in page 2 of exhibit P1 mahazar that in the dash board of that lorry, the G.C.R. was found which contained written original sheets and also the copies. Descriptions were given regarding the number of pages which were written. As against the entry dated 23.2.2000, after noting the number of the lorry in the column meant for writing the name of the driver, the appellant’s name was written and in the next column it was noted “As per bill, Bangalore, TVM”. Since this record was also seized as per the seizure mahazar, it should have been produced by the Investigating Officer (PW4). Since this record was also seized as per the seizure mahazar, it should have been produced by the Investigating Officer (PW4). Since this GCR was not available PW3 could not give evidence pertaining to the same. But that does not in any way affect the case of the prosecution since the appellant, the driver of the lorry who transported the spirit, was caught red handed. The lorry was also seized by the appellant. Therefore, the non production of the GCR is not of any consequence. 18. It was stated by PW3 that the labels containing the signatures of the accused were affixed on all the spirit cans mentioned above. It was observed by the court below that all the spirit cans, 218 in number, were allowed to be kept in safe custody in the A.R. Camp of Palakad. The lorry seized by PW3 was stated to have been entrusted to the Assistant Excise Commissioner, Palakkad, for the purpose of confiscation. There is also evidence to show that one set of samples, 218 in number, were sent for chemical examination through court. 19. Exhibit P3 contains the Forwarding Note submitted by the Sub Inspector of Police, Cusba, Palakkad, as per which 218 sample bottles, containing 150 ml each in the sample bottles of a capacity of 180 ml each, seized on 24.2.2000 at 6.15 pm were sent to the court for forwarding the same for chemical examination. All those samples were sent by the Court for examination on 13.6.2000. 20. Exhibit P4 is the report of the chemical examiner which shows that 218 sample bottles containing 150 ml each, involved in the afore said case, seized from the lorry bearing no. KL – 5 A 8197, were sent for examination. It was certified by the chemical examiner: “The seals on the packets were intact and found tallied with the sample seal provided.” It was certified that all the samples are found to be rectified spirit. The strength of ethyl alcohol was found to be above 93%. Since there were 218 sample bottles, the strength was found to be varying from 93.06% to 95.77%. That means some of the sample bottles were having ethyl alcohol having the strength of 93 and odd percent; some other sample bottles contained eythl alcohol of a strength of 94 and odd percent and other bottles contained ethyl alcohol of a strength of 95 and odd percent. That means some of the sample bottles were having ethyl alcohol having the strength of 93 and odd percent; some other sample bottles contained eythl alcohol of a strength of 94 and odd percent and other bottles contained ethyl alcohol of a strength of 95 and odd percent. It was contended by the accused that if the seizure was had in the manner stated by the prosecution then the percentage of ethyl alcohol showing its strength would not show variance. I find no merit in that contention. 21. Each sample was taken from each of the cans containing spirit. It is only the accused who can explain as to whether the spirit was collected from one person, manufactured at a particular time. If the spirit was manufactured or collected from different persons or different places such variations may occur. However, the fact remains that the spirit cans seized from the lorry mentioned above, contained spirit having a strength of more than 93% by volume of ethyl alcohol. There was no request on the part of the accused to send the other samples kept in the court or kept in the custody of the officer, for examination. 22. While the witnesses were examined in Court, all the spirit cans could not be brought to the court. It is pointed out by the learned Public Prosecutor that in the tiny property room of the Magistrate Court such propertied cannot be kept. Even one or two cans produced in connection with other cases could not be kept in the custody of the court because of lack of space. Therefore, a request was made by the investigating officer to the learned Magistrate to grant permission to keep those spirit cans in the safe custody of the Police. At the time of trial, two plastic cans were brought to the property room of the court. Before examination, the learned Sessions Judge directed the witnesses and the defence counsel to see the two spirit cans from that Property Room and to identify the same and accordingly, they went to the property room and identified the same. 23. Hence, it was deposed by PW2 that he could identify the spirit cans. In regard to the same, it was noted by the trial Judge in the deposition sheet: “Witness and defence counsel were allowed to identify the same after going to the property room. 23. Hence, it was deposed by PW2 that he could identify the spirit cans. In regard to the same, it was noted by the trial Judge in the deposition sheet: “Witness and defence counsel were allowed to identify the same after going to the property room. The cans are big in size and have heavy weight. So they are not brought to the court hall. They are not marked as they are to be returned for safe custody. It is not safe to keep these items in Court”. That fact was not denied by the defence also. Since each can had a capacity of 35 litre containing about 33 litres of spirit, the court can visualize the position and the practical difficulty in taking the spirit cans to the court and its movement from one place to another. That also assumes significance and it also answers the question raised by the defence regarding the delay in the production of the spirit cans in court. 24. It is pointed out by the learned Public Prosecutor that it was not possible for the Police officer to take all those 218 big weighty plastic cans to the court immediately. They had to find out a suitable place for keeping the same in safe custody and they also had to make arrangements for the loading and transportation of those spirit cans from the Kasba Police Station to the A.R. Camo. It is not, as if a bottle of 1 litre or 2 litres could be simply procured to foist a false case against a person. The court cannot shut its eyes to the stark realities. Therefore, the fact that the spirit cans were produced only on 6.4.2000 cannot, in such circumstances, be a reason to doubt the prosecution case. It is pertinent to note that Exhibit P1- seizure mahazar, Exhibit P2- the arrest and inspection memo and other important documents were produced before the court on the next day, i.e. On 25.2. 2000 itself, when the accused were produced before Court. Therefore, it is submitted by the learned Public Prosecutor that though there was slight delay in the production of the documents, that was because of the peculiar circumstance of this case. 25. The decision of the Division Bench of this Court in Ravi Vs. 2000 itself, when the accused were produced before Court. Therefore, it is submitted by the learned Public Prosecutor that though there was slight delay in the production of the documents, that was because of the peculiar circumstance of this case. 25. The decision of the Division Bench of this Court in Ravi Vs. State of Kerala and another 2011 (3) ILR 839 has been relied upon by the learned Public Prosecutor in support of his submission that there is no statutory mandate under section 36 that the articles seized should be “forthwith” produced before Court. Section 40(2) requires the articles seized under that section to be forwarded to the Magistrate without unnecessary delay. But as held in Ravi’s case cited supra, the detecting or investigating officer cannot produced before Court. Section 40 (2) requires the articles seized under that section to be forwarded to the Magistrate without unnecessary delay. But as held in Ravi’s case cited supra, the detecting or investigating officer cannot produce the property leisurely. But so far as the case on hand is concerned, at the risk of repetition, it has to be stated that considering the huge quantity of spirit contained in 218 big cans of 35 litre capacity, the practical difficulty caused in finding out a suitable building/room for keeping it in safe custody also cannot be a ground to upset the verdict of conviction. As the seizure of the contraband articles was promptly reported, the contention to the contrary, advanced by the learned counsel for the appellant, is found to be devoid of any merit. 26. The next point that has been pressed into service by the learned counsel for the appellant is that PW3, the Sub Inspector of Police, himself conducted investigation in this case and so serious prejudice was caused to the accused. This contention has been stoutly resisted by the learned Public Prosecutor. It is pointed out that so far as the case on hand is concerned the seizure of the properties, the sampling and the arrest of the appellant and the other accused is the major part was completed, the contention that prejudice was caused to the accused cannot be sustained. 27. That apart, the investigation conducted by PW3 was verified by PW4, the successor in office of PW3 and it was PW4 who laid the charge sheet. 27. That apart, the investigation conducted by PW3 was verified by PW4, the successor in office of PW3 and it was PW4 who laid the charge sheet. Not even a single question was put to PW4 suggesting that the investigation conducted by PW3 was improper or illegal or that any prejudice was caused by the investigation conducted by PW3. No question was also put to PW4, questioning the verification of the records done by him. Therefore, on that ground also the arguments advanced by the learned counsel for the appellant must fall to the ground. 28. In a similar case, though dealt with under the proviso of the NDPS act, it was held by the Division Bench of this Court in Kader Vs. State of Kerala 2001 (2) KLT 407 that: “Unlike usual cases under the Criminal Procedure Code, in cased under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine circumstances. Therefore, we are of the opinion that merely because a detecting officer himself is investigating officer or the officer of the same rank as that of the detecting officer is investigating the case and files report before the Court will not vitiate the proceedings under NDPS Act in the absence of proof of specific prejudice to the accused.” It was followed by this Court in Subash Vs. State of Kerala 2002 (2) KLJ 409. 29. It was held by the apex court in State Vs. V. Jayapaul 2004 (5) SCC 223 thus: “We find no principle or binding authority to hold that the moment the competent police officer on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in he manner in which it has been done ….” That decision was followed by the Honourable Supreme Court in S. Jeevanantham Vs. State 2004 (5) SCC 230. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in he manner in which it has been done ….” That decision was followed by the Honourable Supreme Court in S. Jeevanantham Vs. State 2004 (5) SCC 230. Even though cases were under the NDPA Act, the principle enunciated by the apex court is applicable to the facts of this case as well. Here also, since the seizure mahazar and other records were produced before the learned Magistrate immediately after the contrabands were seized in the manner stated above and since the sampling was found to be correctly and properly done, the arguments to the contrary advanced by the learned counsel for the appellant is found to be bereft of any merit. 30. The main point that has been given very much thrust by the learned counsel for the appellant is that there was infraction of the mandate contained in section 36 of the Act, which provides that there was infraction of the mandate contained in section 36 of the Act, which provides that the persons called upon to attend and witness the search shall include at least two persons neither of whom is an Akbari, Police or Village Officer. Section 36 reads: “All searches under the provisions of this Act shall be made in accordance with the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) Provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Akbari, Police or Village Officer.” 31. In this case the seizure mahazar was signed by PW! (An independent witness) and by a police constable and as such the learned counsel submits that there is non compliance of the proviso to section 36. It was also pointed out that according to PW2, the Head Constable, there were about four head load workers also, with whose assistance the spirit cans were unloaded from the lorry. But it was not stated that all those persons remained in the police station compound itself till 872 samples were drawn, prepared, packed sealed and labeled, which might have taken about three hours as has been stated by PW3. But it was not stated that all those persons remained in the police station compound itself till 872 samples were drawn, prepared, packed sealed and labeled, which might have taken about three hours as has been stated by PW3. The learned Public Prosecutor submits that one cannot expect the headload workers to remain there for about three or four hours only to be witnesses to the mahazar which was to be prepared by the Police Officer. Therefore, according to the learned Public Prosecutor it is a case where witnesses were not expected to be in the Police Station compound at the time of preparation of the mahazar and, therefore, the fact that the presence of only one independent witness could be procured by PW3 is not a reason to say that there was contravention of the proviso to section 6 of the Act. 32. The learned counsel for the appellant has relied upon the decision of a single bench of this Court in Ramachandran Nair Vs. State, 1990 (1) KLT 44 where it was held.: “The words ‘persons called upon to attend and witness such searches Ushall include at least two persons’ indicate the legislative insistence for strict compliance with the proviso. When the statute uses expressions such as ‘at least’, it must be understood that it denotes the minimum number required for its performance when it falls below the minimum number the officer who makes the search has a duty to explain the reason for not adhering to the minimum requirement. If such explanation is acceptable to court, the seizure or search may not get vitiated. But no hard and fast rule can be laid down that, that non-compliance with statutory conditions will or will not vitiate the action made by the officer.” 33. The learned counsel submits that PW3 has not state that they, in fact, tried to secure the presence of another witness also, but they failed to get another person and so the mahazar could not be signed by two independent witnesses. The learned counsel submits that PW3 has not state that they, in fact, tried to secure the presence of another witness also, but they failed to get another person and so the mahazar could not be signed by two independent witnesses. The learned Public Prosecutor would submit that had it been the intention of PW3 to get the mahazar signed by another person there could have been no difficulty to get it signed by a person who was not there, but because he wanted only a person who had actually witnessed the seizure sampling etc should sign the mahazar, he did not insist for getting another person to sign Exhibit P1. 34. The Division Bench of this Court in Madhavan Vs. Excise Inspector 2000 (1) KLT 311 has considered the proviso to section 36 of the Act and held that infraction of the proviso does not vitiate the trial if materials brought on record justify the conviction. It was held: “Requirement under the proviso is clearly linked with the procedure to be followed while conducting search and that is in terms of the Code. Category of persons to be called upon to attend and witness the search is indicated in the proviso and they have really nothing to do with mandatory or directory nature of the provision. It was further held: “In view of the above position, it is clear that section 36 only provides safeguard to accused during search and even if there is any infraction, that will not vitiate the trial if materials brought on record justify the conviction. It is for the court to decide what weightage can be attached to the evidence in that regard.” Therefore, in the light of the subsequent decision of the Division Bench, the argument advanced by the learned counsel, relying on Ramachandran Nair’s case that, on that score itself the conviction is vitiated, is found to be devoid of any merit. 35. Since the appellant was the driver of the lorry who illegally transported 218 cans of spirit each containing 33 litres each, the finding entered by the court below that the appellant is guilty of offence under section 55 (a) of Abkari Act is well justified. Hence the conviction is to be confirmed. 36. The appellant was sentence to undergo rigorous imprisonment for seven years and to pay fine of Rs. Hence the conviction is to be confirmed. 36. The appellant was sentence to undergo rigorous imprisonment for seven years and to pay fine of Rs. 1,00,000/- and in default to undergo simple imprisonment for one year. The punishment prescribed for the offence is imprisonment for ten years and to pay a fine which shall not be less that n Rs. 1,00,000/- 37. The learned Public Prosecutor submits that it is a clear case where the transport of such huge quantity of spirit was done by or under the behest of ‘liquor mafia’ and so the sentence awarded by the court below is just and proper. The learned counsel for the appellant submits that the appellant is only a paid employee – a driver and so the sentence may be modified. Considering all the aspects this criminal appeal is disposed of as stated below: The conviction of the appellant for the offence under section 55 (a) of Abkari Act is confirmed. In supersession of the sentence awarded by the court below, the appellant is sentenced to undergo rigorous imprisonment for five years and to pay Rs. 2,00,000/- as fine and in default to undergo simple imprisonment for two years. Set off is allowed under section 428 of Cr.P.C. The Additional Sessions Judge will take steps immediately to execute the sentence.