JUDGMENT 1. The appellant was convicted by the Additional Sessions Judge Adhoc-II, Thalassery, for the offence punishable under section 55(a) of Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay Rs.1,00,000/- as fine. 2. The case was detected on 19.06.2001 at about 4.00 pm at a place called Muthathi, in front of Yasodha Rice and Flour Mills. PW2, the Assistant Excise Inspector and his party were on patrol duty at Paravathattu-Mukkoot road. The appellant was found carrying 4 litres of country made illicit arrack in a black plastic can of 5 litre capacity. He was intercepted and the plastic can was examined. It was found to contain 4 litres of illicit arrack. The sample of 250 ml was taken in a bottle of 375 ml. The plastic can containing the residue was also packed, sealed and labelled. The accused was arrested then and there, for which arrest memo was prepared. When the sample was analysed by the Chemical Examiner it was found to contain 33.65 percent by volume of ethyl alcohol. After conducting investigation, charge sheet was laid by the Excise Inspector. 3. PWs 1 to 3 were examined and Exhibits P1 to P5 were marked. The black can containing the residue of liquid was marked as M.O.1. 4. The learned Additional Sessions Judge placed reliance on the evidence given by PW2, the officer who detected this case. PW1, the independent witness did not support the case. PW3 is the person who conducted the investigation and laid the charge sheet. Accepting the case of the prosecution, the appellant was convicted and sentenced as mentioned above. 5. Arguments were initially addressed so vehemently that the records were not produced and seizure was not reported to the court immediately and so on that ground itself the prosecution must fail. Exhibit P1 is the seizure mahazar which contains even the minutest details regarding the arrest of the accused and the seizure of the contraband and the way in which the samples were taken, sealed and labelled. PW2, the Assistant Excise Inspector is the author of that document, who signed it on 19.6.2001. The offence was detected at 4.00 pm on that date. The seizure mahazar was seen by the learned Magistrate on the very same day at 6.45 pm as can be seen on the dated initial put by the learned Magistrate on Exhibit P3 Crime Report. The offence was detected at 4.00 pm on that date. The seizure mahazar was seen by the learned Magistrate on the very same day at 6.45 pm as can be seen on the dated initial put by the learned Magistrate on Exhibit P3 Crime Report. Exhibit P2, the arrest memo shows that the signature and thumb impression of the accused and the signatures of the witnesses were obtained which also was seen by the learned Magistrate on the very same day, i.e, on 19.6.2001, when the accused was produced before the Magistrate. Exhibit P3 is the FIR which shows that the accused and the records were produced before the learned Magistrate at 6.45 pm on that day. In Exhibit P4 also the description of the contraband articles and the sealed sample bottle were specifically mentioned. Even the forwarding note Exhibit P4 was produced before the learned Magistrate along with Exhibit P1 to P3 on the very same day. Therefore, Exhibit P1 to P4 will leave no doubt that the seizure was reported promptly and properly on the very same day within about 2 hours 45 minutes of the detection of the offence. 6. In Exhibit P1 it was specifically mentioned that on the plastic can containing the remaining part of liquor and also on the sample bottle of 375 ml in which 250 ml was taken as sample, the labels containing the signatures of the accused and the witnesses including PW2 were affixed. PW2 has given evidence that on MO1 the contraband article, which was identified and marked before the court below, label containing the signatures of the accused and the witnesses and of PW2 was still there and that similar label was affixed on the sample bottle also. The evidence that MO1 contained such a label affixed as spoken to by PW2 was not challenged by the defence. Therefore, that also is an added circumstance to hold that the evidence regarding the arrest of the accused and the seizure of the contraband from the possession of the petitioner is true. 7. It is vehemently argued by the learned counsel for the appellant that the contraband article (MO1) was not produced on the same day along with Exhibit P1 to P4 as has been mentioned earlier. 7. It is vehemently argued by the learned counsel for the appellant that the contraband article (MO1) was not produced on the same day along with Exhibit P1 to P4 as has been mentioned earlier. Exhibit P4, the forwarding note would show that the sample was forwarded to the learned Magistrate on the same day ie on 19.6.2001, the date of detection. Though PW2 says that MO1, plastic can containing the residue was produced before the court on the same day, the property list (which was not marked in evidence) would show that MO1 was received in court only on 7.9.2004. But in view of the fact that MO1 contained the label which was affixed at the time of seizure, which contained the signature of the accused and of the witnesses, which was not challenged by the defence, it will make it clear that there was no tampering of the seal or label. That apart, as the sample taken from the contraband was produced before the Magistrate on the same day, as can be seen from Exhibit P4, argument to the contrary advanced by the learned counsel for the appellant cannot be sustained. 8. Much was argued by the learned counsel for the appellant that there was no justification for the prosecution not to examine any other witness especially when one independent witness (PW1) did not support the prosecution. The learned Public Prosecutor would submit that the court below has taken every effort to get other witness also but since his presence could not be procured the other independent witness could not be examined. It is further submitted by the learned prosecutor that Exhibit P1 mahazar was signed by PW1. That fact was not denied by PW1. Since that mahazar was produced before the Magistrate within about 2> hours of the incident and since that mahazar contained the signatures of the other independent witness and other Excise Officials who were present along with PW2, that document (Exhibit P1) which is a contemporaneous document prepared by PW2 also corroborates his testimony. The contention that the evidence given by PW2 is to be treated as an interested witness is too facile to be accepted. Corroboration is not a rule of law but only a rule of prudence. The contention that the evidence given by PW2 is to be treated as an interested witness is too facile to be accepted. Corroboration is not a rule of law but only a rule of prudence. There is no legal bar for entering a conviction on the uncorroborated testimony of a single witness, if the Court is satisfied that it is wholly reliable. 9. The evidence given by PW2 was well corroborated by the contemporaneously prepared records which were produced before Court on the same day. Evidence is to be weighed and not counted. It is trite law that conviction can be based on the single testimony of a witness provided it inspires confidence in the mind of the Court. Therefore, the argument based on that point also deserves to be discountenanced. 10. Exhibit P5 is the report of the chemical examiner which shows that the seals on the bottle were in tact and found tallied with the sample seal provided. The bottles contained 250 ml clear and colourless liquid, which on examination was found to contain 33.65 % by volume of ethyl alcohol, which does not conform to the standard prescribed and as such the prosecution is justified in contending that the liquid was illicit liquor. 11. It was also argued by the learned counsel for the appellant that the evidence given by PW2 would show that mahazar was written by the Preventive Officer, Kunhiraman. That Kunhiraman was not examined and so on that ground also conviction is vitiated. This argument is also palpably unsound. Question is not whether Exhibit P1 was written by that Preventive Officer or by any other officer of that excise party. It was headed by PW2, the Assistant Excise Inspector who is superior in rank to the Preventive Officer. Since PW2 is the author of the document in whose presence it was prepared and since it was he who signed the document as the officer who prepared it, it is immaterial in whose handwriting it was written. Therefore, I find no merit in that contention as well. 12. Equally fallacious is the argument advanced by the learned counsel for the appellant that PW2 is to be treated as related or interested witness. As such the decision in State of Kerala Vs. Padmanabhan Nair 1989(2) KLT Short Notes Case No.34 is also inapplicable to the facts of this case. 13. 12. Equally fallacious is the argument advanced by the learned counsel for the appellant that PW2 is to be treated as related or interested witness. As such the decision in State of Kerala Vs. Padmanabhan Nair 1989(2) KLT Short Notes Case No.34 is also inapplicable to the facts of this case. 13. The next contention that was advanced by the learned counsel for the appellant is that there is no evidence to show as to who took the sample. The decision in Lalitha Vs. State of Kerala 2012 (1) KHC 554 has been relied upon for that purpose. That decision is also inapplicable to the facts of this case since PW2 has given evidence that the sample was taken in his presence and that it was sealed and labelled. Those facts are mentioned in detail in Exhibit P1 seizure mahazar. It is not a case where after the contraband was produced before the court, the sample was taken subsequently from out of that contraband article. Here the sampling was done at the time of the seizure itself and that has been specifically mentioned in Exhibit P1. What more, the sample which was sealed and labelled was produced before the learned Magistrate on the same day at 6.45 pm. It is not known how the decision in Lalitha's case have any application to the facts of this case. 14. It was also argued that the cognizance taken by the court below is also bad. PW3 was the Excise Inspector of Payyanur Range who conducted the investigation of this case and it was he who laid the charge sheet and as such that argument also is devoid of any merit. 15. The only other point that survives for consideration is whether PW2 the Assistant Excise Inspector was an Abkari Officer competent to detect the offence. Reliance was placed by the learned counsel for the appellant on the decision of this court in Subrahmaniyan Vs. State of Kerala, 2010 (2) KLT 470 to fortify his submission that the Assistant Excise Inspector was not a competent or an authorised officer as contemplated by the provisions of the Abkari Act and therefore, the arrest and seizure made by PW2 is illegal. 16. State of Kerala, 2010 (2) KLT 470 to fortify his submission that the Assistant Excise Inspector was not a competent or an authorised officer as contemplated by the provisions of the Abkari Act and therefore, the arrest and seizure made by PW2 is illegal. 16. The learned Public Prosecutor, Smt. Jasmine, submits that the officers of the Excise Department of the rank of Preventive Officer and above are Abkari Officers and since the Assistant Excise Inspector is the officer just superior in rank to 'Preventive Officer', the detection of the offence made by the Assistant Excise Inspector and the seizure of the contrabands and arrest of the accused made by him are not without jurisdiction as contended by the defence. It is not disputed that post of the Assistant Excise Inspector comes in between the post of Excise Inspector and Preventive Officer. In other words, the fact that the Assistant Excise Inspector is superior in rank to preventive officer is beyond any pale of doubt. 17. But it is argued by the learned counsel for the appellant that as per section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by the official titles. It is argued since as per the notification in SRO 234/1967 it was specifically mentioned that the acts and duties mentioned in sections 40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector and since PW2 was only an Assistant Excise Inspector, the arrest of the accused, the seizure of the articles and sampling of the articles done by him were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per SRO 234/1967, Preventive Officers were invested with the powers to be exercised under sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector who's not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan Vs. State of Kerala 2010(2) KLT 470. 18. Smt. Jasmine, the learned Public Prosecutor submits that the contention that even thereafter no notification was issued authorising and empowering the Assistant Excise Inspector to perform the duties under the Act cannot be countenanced in view of the subsequent notification- SRO 361/2009 dated 8.5.2009 as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. It was further made clear that all officers of the Excise department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under sections 31, 32, 34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. But that notification cannot come to the rescue of the prosecution in this case since this notification SRO 361/2009 came into force only with effect from 08.5.2009 whereas the offence in this case was detected on 19.6.2001. The incident in the case on hand took place long prior to the aforesaid notification. Hence, following the decision in Subrahmaniyan's case, it has to be held that PW2, the Assistant Excise Inspector was not empowered under the Act as it stood then, to perform the duties under the aforestated provisions. Therefore, only on this ground, this criminal appeal is allowed. Hence, following the decision in Subrahmaniyan's case, it has to be held that PW2, the Assistant Excise Inspector was not empowered under the Act as it stood then, to perform the duties under the aforestated provisions. Therefore, only on this ground, this criminal appeal is allowed. But it is made clear that on and after 08.5.2009, the arrest of the accused, seizure of contraband, sampling, sealing and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers. 19. In the result, conviction and sentence passed against the appellant are set aside. He is set at liberty. The bail bond, if any, executed by him will stand cancelled.