The main legal point established in the judgment is the requirement for clear and convincing evidence to prove the sale of liquor under Section 55(i) of the Kerala Abkari Act, and the significance of the detecting officer's role in such cases.

P. UBAID, J.

1. The appellant herein challenges the conviction and sentence against him under Section 55(i) of the Kerala Abkari Act in S.C. No. 547/2011 of the Court of Session, Ernakulam.

2. The prosecution case is that at about 10.45 a.m. on 21.11.2010 at a plantain garden at Nellimattom, the accused was found possessing and selling Indian made Foreign Liquor. The offence was detected by the Sub Inspector of Police, Oonnukal during his usual patrol duty, and he happened to make the detection on the basis of some secret information. The Police party led by the Sub Inspector saw the accused pouring Indian Made Foreign Liquor in two glasses and selling it to two persons. On seeing the police party, those two persons ran off and escaped by leaving the glasses there. The Sub Inspector arrested the accused on the spot and seized the bottles containing liquor, including some sealed bottles of Indian Made Foreign Liquor. He seized one liquor bottle of 1.5 litres capacity, three other sealed bottles of 1 litre capacity and another 375 ml bottle. All these liquor bottles were seized as per mahazar by the Sub Inspector. Two samples of 250 ml each were taken from the liquor bottle of 1.5 litres capacity and also one of the sealed bottles of one litre capacity. All the three sealed bottles had identical labels of the same company. The other 375 ml bottle containing liquor was also taken as sample. All the sample bottles were well packed and sealed according to law, and the other bottles were also well packed and sealed at the spot of detection itself. On the basis of the arrest and seizure, the Sub Inspector registered a crime against the accused under Section 55(a) and (i) of the Act. The Sub Inspector himself investigated the case and submitted final report in court under Section 55(a) and (i) of the Kerala Abkari Act. After complying with the procedural formalities, the learned Judicial First Class Magistrate, Kothamangalam committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc) I, Ernakulam for trial and disposal.

3. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 55(a) and (i) of the Kerala Abkari Act. The prosecution examined six witnesses including the Detecting Officer and proved Exts. P1 to P10 documents. The MO1 to MO7 properties were also identified during trial. When examined under Section 313 Cr.P.C. the accused denied the incriminating circumstances and projected a defence that the case was falsely foisted against him by the Police. However, the accused did not adduce any evidence in defence.

4. On an appreciation of the evidence, the trial court found the accused not guilty under Section 55 (a) of the Kerala Abkari Act, and accordingly acquitted him of the said offence, but the accused was found guilty under Section 55 (i) of the Kerala Abkari Act. On conviction, he was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1,00,000/- (Rupees One lakh only) by judgment dated 31.3.2012. Aggrieved by the judgment of conviction, the accused has come up in appeal.

5. When this appeal came up for hearing, the learned counsel for the appellant submitted that there is absolutely no proper and legal evidence in this case to prove physical possession of the contraband articles by the accused.

6. Of the six witnesses examined by the prosecution in the trial court, PW-1 is the Sub Inspector, who detected the offence and PW-6 is the Additional Sub Inspector who assisted the Sub Inspector in the process of detection. PW-2 and PW-3 are the independent witnesses, but they turned hostile. However, these two witnesses admitted their signature in the seizure mahazar. They have no satisfactory explanation as to how they happened to attest the Ext.P1 seizure mahazar. PW-4 is the Village Officer who prepared the Ext.P10 scene plan and PW-5 is the brother of the owner of the plantain gar