JUDGMENT : The appellant is the convict in S.C.No.743/2010 of the Additional Sessions Court, Fast Track No.-II, Palakkad; he was found guilty and convicted for an offence punishable under Section 8(1) and (2) of the Abkari Act. The prosecution allegation is that, on 13/05/2010 at 8.45 A.M., the Preventive Officer attached to the Cherpulassery Excise Range Office and party found the appellant in illegal possession of five litres of arrack, on the Chalavara-Thiruvakkonam road, near the Cholai bridge in Chalavara desom and village in Ottapalam taluk. It is alleged that, that day while the Preventive Officer and party were engaged in patrol duty, near the Cholai bridge at 8.45 A.M., the appellant was found moving through the road carrying a plastic can containing some liquid. Seeing the Excise party the appellant became panic; he was intercepted and the content of the can was tested by smelling and tasting; finding that it was arrack, the item was seized under a mahazar, in the presence of independent witnesses the appellant was arrested from the place and handed over to the Excise Inspector who registered Crime No.18/10 of Cherpulassery Range. The appellant was produced before the court on the same day along with the contraband. After investigation the charge sheet was laid before the Judicial First Class Magistrate Court-I, Ottapalam, who took it on file as C.P.No.106/2010. After completing the procedural formalities, the case was committed to the Sessions Court, Palakkad from where it was made over to the trial court. 2. After hearing the counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty. He was on bail. 3. The prosecution charge contains five witnesses who are the Preventive Officer and an Excise Guard, two independent witnesses and the Excise Inspector who completed the investigation and laid the charge sheet. All of them were examined as PWs 1 to 5 respectively. Exts.P1 to P14 were also marked on the side of the prosecution. On conclusion of the evidence, when examined under Section 313(1)(b) Cr.P.C., the appellant denied all the incriminating materials tendered against him and claimed that he is innocent. To the penultimate question he said that one Gopalakrishnan had indulged in illegal sale of brandy near his house which he had objected; out of that animosity, at the instance of the said Gopalakrishnan, a false case was foisted against him. 4. To the penultimate question he said that one Gopalakrishnan had indulged in illegal sale of brandy near his house which he had objected; out of that animosity, at the instance of the said Gopalakrishnan, a false case was foisted against him. 4. As there was no ground for acquitting the appellant under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence but no evidence was adduced on his side. After hearing the counsel on both sides, by the impugned judgment, the learned Additional Sessions Judge found him guilty of the offence under Section 8(1) read with 8(2) of the Abkari Act, convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for six months. That conviction and punishment are called in question before this Court under Section 374(2) of the Cr.P.C. 5. I heard Adv. Sri. Manu Roy for the appellant and Sri. E.C. Bineesh, the Public Prosecutor. 6. The learned counsel for the appellant raised two-fold contentions, canvassing acquittal of the appellant. According to the learned counsel, the prosecution has failed in proving the allegation of seizure of the contraband from the possession of the appellant as alleged. Both the independent witnesses have turned hostile to the prosecution and, therefore, it is quite unsafe to proceed against the appellant basing on the interested testimony of PWs 1 and 2, the Preventive Officer and the Excise Guard. Secondly he pointed out that even the testimony of PWs 1 and 2 is not foolproof, since there are numerous inconsistencies in their version. He also pointed out that PWs 1 and 2 did not have a consistent case as to the place from where the appellant was arrested and the contraband was seized. According to the learned counsel, there are material contradictions which belie the evidence of PWs 1 and 2. In the circumstance, the learned Sessions Judge ought not to have relied on their version without corroboration through independent sources. Citing the testimony of PWs 3 and 4 independent witnesses, he said that both had attested the arrest memo and the Ext.P3 mahazar at the Excise office and it is for the prosecution to say how they happened to sign these documents at the office. 7. Citing the testimony of PWs 3 and 4 independent witnesses, he said that both had attested the arrest memo and the Ext.P3 mahazar at the Excise office and it is for the prosecution to say how they happened to sign these documents at the office. 7. The learned counsel also submitted that the appellant is a first-time offender and a kidney patient, that transplantation surgery has been advised for him. 8. On the other hand, the learned Public Prosecutor has argued that there is absolutely no reason to disregard the oral testimony of PWs 1 and 2 which is quite convincing. The contradictions highlighted by the learned counsel are minor in nature, on the basis of which the conviction and sentence may not be disturbed. According to him, both PWs 1 and 2 have given a consistent version and their testimony stand corroborated on material particulars. 9. Before going into the rival contentions, the evidence of the prosecution can be stated in a nutshell. As mentioned earlier, the prosecution alleges that the appellant was found near the Cholai bridge on the Chalavara-Thiruvakkonam road while carrying five litres of arrack in a white plastic can. PW1 is the Preventive Officer who led the Excise party and detected the crime. According to him, while they were on patrol duty, were moving from east to west in the Excise vehicle, near the Cholai bridge in Chalavara desom and village, one person, the appellant was found moving ahead of them carrying a white can; he was seen first about 30 yards in front of them. Seeing the Excise party he hurried forward, then out of suspicion, the vehicle was stopped near him. He was intercepted and the liquid contained in the plastic can was tested by smelling and tasting. They realised that it was arrack, the fact was apprised to the independent witnesses also who reached there. The contraband was seized under Ext.P3 mahazar and the appellant was arrested. Ext.P1 arrest memo was prepared and the Ext.P2 arrest notice was given to his brother. A sample of the liquid was also taken following the procedural formalities and then the party returned to the Excise Range office with the contraband. The contraband was seized under Ext.P3 mahazar and the appellant was arrested. Ext.P1 arrest memo was prepared and the Ext.P2 arrest notice was given to his brother. A sample of the liquid was also taken following the procedural formalities and then the party returned to the Excise Range office with the contraband. In cross-examination he said that the appellant was seen for the first time at 8.45 A.M. near the Cholai bridge, the contraband was seized from near the bridge, that the appellant was found on the one end of the bridge; the arrest memo was prepared by Shajikumar A., the Excise Guard and the Ext.P3 was prepared in his own hand. They reached back the Excise office at 10 A.M. He does not know the residence of the appellant, that the independent witnesses had reached there from the opposite direction. 10. PW2 Santhosh Kumar was the Excise Guard, who was in the party of PW1. He also gave similar statement as that of PW1. In cross-examination he said that there were four persons in the Excise party; they were moving from east to west. They had seen the appellant about 10 yards away, then the appellant was standing on the side of the Thiruvakkonam road; seeing the Excise party he took to his heels through the bridge, they chased and intercepted him. 11. PW3 Babu admitted his signature found on Ext.P1 arrest memo and Ext.P3 seizure mahazar, but denied having witnessed the Excise party seizing the contraband from the appellant or arresting him. He was declared hostile to the prosecution. According to him, he had signed the documents at the Excise office in the presence of PW4 Sunil Prakash. PW4 Sunil Prakash also admitted his signature found on the Exts.P1 and P3 documents, but turned hostile to the prosecution and was cross-examined by the Public Prosecutor. According to him, he is an autorikshaw driver, he had signed the documents at the Excise office, that himself, the appellant and PW3 Babu together had gone to the Excise office. 12. PW5 is the Excise Inspector of Cherpulassery Range who conducted investigation and laid the charge sheet. He proved the Exts.P4 to P14 documents. According to him, he is an autorikshaw driver, he had signed the documents at the Excise office, that himself, the appellant and PW3 Babu together had gone to the Excise office. 12. PW5 is the Excise Inspector of Cherpulassery Range who conducted investigation and laid the charge sheet. He proved the Exts.P4 to P14 documents. According to him, on receipt of Exts.P1 to P3 documents and production of the appellant along with the contraband, the occurrence report was prepared by him; then he produced the appellant and the material objects before Court, along with remand report. 13. That means, the Preventive Officer and the Excise Guard supported the prosecution case basing on which the learned Sessions Judge entered into the finding of conviction and imposed the sentence as noted supra. The independent witnesses, PWs 3 and 4, though admitted their signatures found on Ext.P1 arrest memo and Ext.P3 seizure mahazar, deposed that they were signing the documents at the Excise office and that they have not witnessed the Excise party seizing the contraband from the possession of the appellant or arresting him from near the Cholai bridge. Both the witnesses were declared hostile to the prosecution and their CD contradictions were marked as Exts.P4 and P5 respectively. 14. The moot question is as to how far the oral testimony of PWs 1 and 2 can be relied upon to enter a finding against the appellant. 15. It has come out from the oral evidence and documents that the sample was collected from the contraband at the time of detection itself. Ext.P3 seizure mahazar and the Ext.P9 forwarding note contain the seal of the Excise Officer who detected the crime. The Ext.P14 Chemical Analysis Report proves that the contraband was arrack containing 37.27% by volume of Ethyl alcohol. The report was prepared after confirming that the seals on the packet and on the bottle were intact and found tallied with the sample provided. 16. Now, I shall turn to the arguments raised by the learned counsel for the appellant. 17. As seen above, both the official witnesses given a uniform version supporting the prosecution, whereas, both the independent witnesses have turned hostile to the prosecution. Now the question is, since the independent witnesses did not support the prosecution case, the evidence of PWs 1 and 2, the officials should be discarded and the appellant be exonerated. 17. As seen above, both the official witnesses given a uniform version supporting the prosecution, whereas, both the independent witnesses have turned hostile to the prosecution. Now the question is, since the independent witnesses did not support the prosecution case, the evidence of PWs 1 and 2, the officials should be discarded and the appellant be exonerated. After analysing the evidence of PWs 1 and 2, the learned Sessions Judge found them believable and thus, in spite of the fact that the independent witnesses have turned hostile to the prosecution, the appellant was found guilty and convicted. 18. Considering the materials on record, I agree with the learned Sessions Judge that there was absolutely nothing to disbelieve PWs 1 and 2. Firstly, after recording the testimony and watching the demeanour, the learned Judge found them worthy of credit. Even otherwise, there is no proposition applicable in all cases that conviction shall not be entered basing on the testimony of official witnesses. The test is always whether evidence tendered by a witness is genuine and convincing. If it is genuine and trustworthy, there is no inflexible rule that even if it is a solitary evidence, it should not be acted upon. It is a matter of discretion for the trial court and the only thing is that such a discretion should be exercised in a judicious manner. In the decision reported in Kochan Velayudhan v. State of Kerala [ 1960 KLT 753 FB] a Full Bench of this Court held that it would be open for the court to convict the accused on the evidence of Police officers alone, if after examining that evidence carefully, the court feels satisfied that it is true. 19. Both PWs 1 and 2 were engaged in patrol duty; on the way they found the appellant moving carrying a plastic can containing some liquid; he was intercepted and found possessing arrack which is a prohibited article. There is no suggestion to these witnesses that they had any previous acquaintance with the appellant, for that reason no malice or ill-will can be attributed against them for foisting a false case against him. Evidence of a witness cannot be discounted for the mere reason that he is a police officer or an Excise officer. Duty of an Excise officer is to track various crimes under the Abkari/NDPS Act. Evidence of a witness cannot be discounted for the mere reason that he is a police officer or an Excise officer. Duty of an Excise officer is to track various crimes under the Abkari/NDPS Act. PWs 1 and 2 had come across the appellant while engaged in their routine duty. On that score, they do not become interested witnesses. In such a setting the Hon'ble Supreme Court in Rohtash Kumar v. State of Haryana [2013 (2) KLT SN 144 (C. No. 184) SC] held that there can be no prohibition to the effect that policemen cannot be a witness or that his deposition cannot be relied upon. The very same preposition is applicable with regard to PWs 1 and 2 also who are Excise officials. In that view of the matter, there is no hazard in proceeding against the appellant basing on the oral testimony of PWs 1 and 2 which is supported by contemporaneous documents like Exts. P1, P3 etc. 20. It has also come out that both PWs 3 and 4 independent witnesses have turned hostile to the prosecution. There are reasons to think that both of them belong to the very same area of the appellant and had previous association with him. In such a backdrop, it cannot be expected that they would support the prosecution case. Invariably in all such cases independent witnesses do not support the prosecution case, resiling from the previous statement given to the investigating officer. Here both PWs 3 and 4 have deposed that they had signed the arrest memo as well as the seizure mahazar. In the same breath they wanted to convince the court that they signed the documents at the Excise office which is a hard proposition to believe. They had taken such a u-turn for reasons which are obvious, for helping one of their cronies, at the time when he is in trouble. 21. Everything was done by PW1 following the procedural formalities, Ext. P3 was prepared at the spot and it bears the signature of independent witnesses. Ext.P3 is a contemporaneous document and in no stretch of imagination it could be thought that PWs 3 and 4 were summoned to the Excise office for getting attestation. The prosecution documents also suggest that these materials were promptly produced before court and therefore its contemporaneous nature stand assured. Ext.P3 is a contemporaneous document and in no stretch of imagination it could be thought that PWs 3 and 4 were summoned to the Excise office for getting attestation. The prosecution documents also suggest that these materials were promptly produced before court and therefore its contemporaneous nature stand assured. In the decision in Sumit Tomar v. State of Punjab [ 2013 (1) SCC 395 ] the Supreme Court held that in the absence of any such independent witness, if the statements of the Police officers are reliable, when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. This Court had occasion to consider situations in which such independent witnesses had turned hostile leaving the court to go by the testimony of official witnesses. In a similar case, Sivaraman v. State of Kerala [1981 KLT SN 9 (C.No. 17)] this Court held that instances are not rare where independent witnesses, for reasons of their own, go back from the contents of the mahazar which they had attested. The court has to scrutinize the evidence of Excise officials to satisfy itself whether the procedural safeguards have been observed and if so satisfied, the evidence of official witnesses regarding occurrence and seizure can be accepted. This has been followed in Suresh v. State [ 1995 (1) KLT 636 ], Paravan v. State of Kerala [ 2007 (1) KLT 396 ], Vikraman v. State of Kerala [ 2007 (1) KLT 1010 ], Madhavan H. v. State of Kerala [ 2009 (3) KLJ 418 ] etc., where it has been pointed out that much strain is not needed to conclude that such witnesses were turning out to be cunning performers in the witness box evidently to jettison the accused from criminal liability. 22. After going through the oral testimony of PWs 1 and 2 and other materials, I have no doubt that both of them were giving convincing evidence and inspire confidence. The learned Sessions Judge found them trustworthy and thus in spite of the fact that independent witnesses had turned hostile to the prosecution, the appellant was found guilty and convicted. 23. Turning to the second argument, that there are material discrepancies in the prosecution evidence in the testimony of PWs.1 and 2, also does not merit consideration. The learned Sessions Judge found them trustworthy and thus in spite of the fact that independent witnesses had turned hostile to the prosecution, the appellant was found guilty and convicted. 23. Turning to the second argument, that there are material discrepancies in the prosecution evidence in the testimony of PWs.1 and 2, also does not merit consideration. At the first place, as a matter of fact, there is no such contradiction with regard to the movement of the appellant at the time when the Excise party had seen him. It is the consistent case of the prosecution that the Excise party was moving from east to west through the Chalavara-Thiruvakkonam road. PW1 has deposed that the appellant was moving ahead of them, hearing the sound of the vehicle he turned back and moved fast, then he was intercepted. According to the learned counsel for the appellant, PW2 had reportedly stated that the appellant was moving in their opposite direction when they had seen him. But no such statement is seen given by PW2. Of course, PW2 had stated that, seeing the Excise party the appellant had tried to run away, the party chased him and caught from near the bridge. Such a version is absent in the testimony of PW1. But for that reason the entire version of the prosecution cannot be displaced. 24. It is the consistent stand that in such cases courts should take a prudent and realistic view of the matter. In the decision reported in Munshi Prasad v. State of Bihar ( AIR 2001 SC 3031 ), it is held that once trustworthiness of the prosecution evidence stands satisfied, it cannot be discarded merely on the ground of presence of minor variations in evidence. The incident had happened on 13/05/2010 and the witnesses had given evidence on 10/06/2013, after three years. Both PWs 1 and 2 must have been witnesses in numerous similar detections during their official career and, therefore, it cannot be believed that they could recollect each and every incident with mathematical precision. Such minute details are not expected in a criminal trial. A criminal trial is not a memory retention test for the witnesses. Some discrepancy is inevitable and, in fact, it assures the creditworthiness of the witness. Trivial discrepancies crept in the prosecution case should not be given undue importance so long as it does not materially affect the prosecution case. Such minute details are not expected in a criminal trial. A criminal trial is not a memory retention test for the witnesses. Some discrepancy is inevitable and, in fact, it assures the creditworthiness of the witness. Trivial discrepancies crept in the prosecution case should not be given undue importance so long as it does not materially affect the prosecution case. Minor discrepancies are bound to occur in the evidence of truthful witnesses. The Apex Court in Sampat Tatyada Shinde v. State of Maharashtra ( AIR 1974 SC 791 ) held that such variations creep in because there are always natural differences in the faculties of different individuals in the matter of observation, perception and memorisation of details. They are hardly a ground for rejecting their evidence when there is consensus as to the substratum of the case. 25. The following observations of Hon'ble Justice V.R. Krishna Iyer in Narotam Singh v. State of Punjab and another ( AIR 1978 SC 1542 ) stand the test of time: “3. Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The 'sacred cows' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home. .................” 26. In other words, the material question is whether the prosecution could establish the substratum of the prosecution case. have already held that there is absolutely no hazard in relying on the testimony of PWs 1 and 2, official witnesses. Their evidence stand corroborated with the partial support given by PWs 3 and 4 and also material documents, some of which are contemporary in nature. There is no doubt with regard to the place of occurrence, which is Chalavara-Thiruvakkonam road, near the Cholai bridge. The contradictions highlighted by the learned counsel are too trivial to stand judicial scrutiny. 27. There cannot be any doubt that, the story of sale of brandy by one Gopalakrishnan as the motive, spoken by the appellant in his statement given under Section 313 Cr.P.C., does not require serious consideration. The contradictions highlighted by the learned counsel are too trivial to stand judicial scrutiny. 27. There cannot be any doubt that, the story of sale of brandy by one Gopalakrishnan as the motive, spoken by the appellant in his statement given under Section 313 Cr.P.C., does not require serious consideration. This was stated by the appellant for the first time when he was examined by the Court; it was not even suggested to the official witnesses nor any answer was elicited from them. Appellant did not adduce any evidence to probabilise the version. That means, it is a clear case of afterthought, invented by the appellant at the final phase of the trial. 28. On these considerations, I have no doubt in my mind that the learned Sessions Judge is justified in finding the appellant guilty under Section 8(1) and (2) of the Abkari Act and in convicting him. The conviction is confirmed. 29. Even though it was pointed out that the appellant is a renal patient, that kidney transplantation has been suggested etc., no evidence is forthcoming supporting the version. Even then, considering the time lag, I feel that interest of justice will be met by awarding a sentence of rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-(Rupees One lakh only), in default rigorous imprisonment for three months. With the above modification, the appeal is dismissed. Today when pronounced, the learned counsel submitted that an amount of Rs.10,000/-was deposited by the appellant before the trial court, while suspending the order of sentence. That amount will certainly be adjusted from the fine amount already imposed. Similarly, the appellant is entitled to get the benefit of set off under Section 428 of the Cr.P.C. the period he has already undergone judicial custody during enquiry/trial.