crime, seizure of the contraband article or at the time of taking samples. A perusal of Ext.P2 mahazar would show that it contained the signature of PW.3 and another witness but it cannot be said that those signatures were obtained at the spot itself as spoken to by PWs.1 and 2. PW.3 had deposed that he put the signature in Ext.P2 mahazar at the house of the accused. The presence of independent witness is also doubtful as it has come out in evidence that no signatures were seen either in MO.1 or in the sample taken from MO.1. If that be so, the argument put forward by the learned counsel for the appellant that PW.1 had violated the provisions of Sections 36 and 53 of the Abkari Act and the provisions of the Kerala Excise Manual has to be upheld. The prosecution has not proved the presence of any independent witness at the time of detection of the crime or seizure of the contraband article. Therefore, the appellant is entitled to the benefit of doubt. Further, PW.1 when cross-examined stated that the contraband article alleged to have been seized from the appellant and the sample were not in his custody till those were produced before the court and the prosecution had not adduced any evidence to show that the contraband article and the sample were kept intact in the excise office . In this context, the principle laid down by this Court in the decision reported in Narayani v. Excise Inspector, 2002(3) K.L.T. 725 is relevant. In the above judgment, this Court had held that it was the duty of the
