The main legal point established in the judgment is the requirement for the prosecution to prove conscious possession of contraband and the specific allegations needed to establish the offence under the Abkari Act.

The sole accused who stands convicted for offence punishable under Section 55(a) of the Abkari Act, by judgment dated 24.07.2009 in S.C.No.1407 of 2002 of the Additional Sessions Court (Abkari Cases), Kottarakkara is the appellant herein.

2. The prosecution case is that on 30.04.2000 at about 10.30a.m., the accused was intercepted with a can containing 19 litres of toddy mixed with spirit along with a drinking glass allegedly for the purpose of sale. After drawing samples from it and preparing contemporaneous documents, he was arrested and crime registered. He was produced before the magistrate court. After completion of investigation, a crime was registered and the final report was laid for offences punishable under Section 55(a) and 55(i) of the Abkari Act. Before the learned Sessions Judge, the accused pleaded not guilty and faced the trial. On the side of the prosecution, PWs.1 to 4 were examined and Exts.P1 to P5 were marked. MO1 was identified. On the side of the accused, DW1 was examined.

3. The court below, on an evaluation of all available inputs concluded that the accused is guilty, convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for three months for offence punishable under Section 55(a) of the Abkari Act.

4. Aggrieved by the conviction and sentence, accused has preferred this appeal. Heard both sides and examined the records.

5. PWs.1 and 2 were claimed to be independent witnesses by the prosecution. However, both of them turned hostile and did not support the prosecution case in any manner. PW1 admitted that he has signed on Ext.P1. PW2 claimed that he had signed on a white paper. However, both of them did not deny the signatures. In the absence of anything to doubt or any specific allegation that the police have coerced or threatened the witnesses to sign documents, I am not inclined to believe the version of PW2 and it is only to be held that they have voluntarily and knowingly signed Ext.P1 seizure mahazar.

6. PW3 is the detecting officer who was the Sub Inspector of Police of the Punalur police station. PW4 was the ASI of the same police station during the relevant time. Both the witnesses deposed uniformly in relation to the prosecution case. They deposed that on getting information that the accused was selling toddy laced with spirit, both of them went to the spot and intercepted the accused. Both the witnesses deposed that at the time of interception, accused was holding a drinking glass with the can placed nearby. On tasting the contents of the can, it was found to be toddy laced with spirit. According to the witnesses, the total quantity contained in the can was about 19 litres. They deposed in terms of drawing of the sample, preparation of the contemporaneous documents, labelling and arrest of the accused. They also deposed about the details of the entire process.

7. Ext.P1 is the seizure mahazar and Ext.P2 is the custody memo. The contents of the above documents are in tune with the versions spoken to by both the witnesses. Even though, PWs.3 and 4 were cross examined, touching upon the defence set up by the accused, no material contradiction or omission has been brought out. The evidence uniformly tendered by PWs.3 and 4 are corroborated by Exts.P1 and P2.

8. PW3 himself was the investigating officer. Ext.P3 is the FIR and Ext.P4 is form 151A. Ext.P5 is the chemical analysis report which showed that the first sample contained 28.70% Ethyl Alcohol and sample 2 contained 29.36% Ethyl Alcohol. The available material indicate that the samples drawn at the spot was sealed, taken to the police station and without considerable delay, produced before the magistrate. It was thereafter forwarded to the chemical analysis lab. Ext.P5 indicates that the sample was found to be properly sealed, the seal remained in tact and tallied with the samples.

9. The defence as revealed from the trend of cross examinati