The central legal point established in the judgment is the requirement for reliable and consistent evidence in cases involving search, seizure, and prosecution under the Abkari Act.

The sole accused in Sessions Case No.227/2001 of the Additional District and Sessions Court, Fast Track,(Adhoc II), Kozhikode for the offence punishable under Section 55(a) of the Abkari Act challenges the conviction and sentence.

2. The prosecution allegation was that on 17/2/2000, at about 6.30. a.m., while the C.I.of Balussery police station, along with the patrolling party, was on their regular patrolling duty, they reached the place of incident and intercepted the accused who was carrying a 10 liter plastic can. The accused was intercepted, searched and it was found that the can contained illicit arrack. After the initial formalities, he was arrested at the spot and later produced before the learned Magistrate. After completion of the investigation, the final report was laid and the accused faced trial before the Sessions Court.

3. To substantiate the prosecution allegation, PWs1 to 4 were examined and Exhibits P1 to P8 were marked. The accused pleaded not guilty and tendered the defence witness, examined as DW1. The court below, on an evaluation of the available materials, concluded that the accused was guilty under Section 55(a) of the Abkari Act, convicted and sentenced to undergo rigorous imprisonment for six months. Set off was also allowed.

4. Aggrieved by the above conviction and sentence, the accused has preferred this appeal.

5. Heard both sides and examined the records.

6. The prosecution, to sustain the allegation against the accused, mainly relied on the oral testimony of PW1 and PW2 as well as the contemporaneous documents marked as Exts.P2 and P3, along with Ext.P7, the chemical analysis report. There is no dispute that Ext.P7 shows that the samples, which were forwarded to the chemical analysis lab, contained ethyl alcohol.

7. The learned counsel for the accused vehemently contended that the prosecution failed to establish the guilt against the accused, beyond any reasonable doubt. It was contented that the evidence tendered by the prosecution witnesses were shaky, unreliable and that the process of search, seizure and preparation of the contemporaneous documents were tainted. He pleaded for acquittal. The defence, as set up by the accused in the course of examination and as revealed under Section 313 of Crl.P.C., was that he was falsely implicated. He pleaded that he was called from his house and a false case was foisted on him.

8. There is no doubt that according to the prosecution, it was a chance recovery. PW1 was the detecting officer, who was the C.I. of Balussery police station. According to him, while he was on a law and order patrolling duty, he intercepted the accused, who was standing on the road side. Ext.P2 is the seizure mahahar. According to PW1, the accused was searched, can was found containing arrack and after separation of samples and affixture of labels, he was taken to the police station and the further proceedings followed.

9. It is pertinent to note that there is no independent witness to the alleged seizure. Both the witnesses to Ext.P2 seizure Mahazar Ext.P2 are the police constables. Only one of the witnesses was examined as PW2. Though PW1 and PW2 generally spoke in terms of the inspection, recovery, and the remaining formalities, the only independent witness available was that of Ext.P4 mahazar, who turned hostile. Ext.P4 mahazar shows that the incident occurred on the road side. It was about 50 meters away from the market place. The mahazar also indicate that there were several houses around the place of incident. The incident happened at 6.30 a.m. PW1 in his evidence admitted that there were several houses and shops around the place of the incident and road had reasonably good traffic. He also deposed that he was present at the spot for almost half an hour. However, it is strange that absolutely no independent witness was there to witness the entire process. It appears to be highly doubtful especially in the background that Ext.P3, which is the arrest memo stated to be