The prosecution must prove possession of illicit substances beyond reasonable doubt, including maintaining the integrity of evidence and witness credibility.

ORDER

The revision petitioner is the 1st accused in C.C.No.952/1998 of the Judicial First Class Magistrate Court-I, Kollam.

2. Concurrent verdicts of guilty and conviction recorded against the petitioner under Section 55 (a) of the Abkari Act, 1077 are assailed in this Revision Petition. The prosecution case is that, on 11.06.1996 at about 12.15 p.m., the revision petitioner along with the 2nd accused was found in possession of two bottles of illicit arrack and on further questioning, 52 bottles of illicit arrack were seized from the public place near railway gate at Kilikkolloor.

3. The trial court framed charge against the petitioner for the offence punishable under Section 55 (a) and (i) of the Kerala Abkari Act . The petitioner and the 2nd accused pleaded not guilty and claimed to be tried.

4. The prosecution examined PWs.1 to 5, marked Exts.P1 to P3 documents and identified material objects MO1 and MO2 series. No defence evidence was adduced by the petitioner/1st accused.

5. The trial court convicted and sentenced the revision petitioner and the 2nd accused under Section 55 (a) of the Abkari Act. The trial court sentenced the petitioner/1st accused to undergo simple imprisonment for one year and to pay a fine of Rs.25,000/-. In default of payment of fine, the petitioner/accused has to undergo SI for three months. The revision petitioner and the 2nd accused preferred appeal before the Sessions Court, Kollam as Crl.Appeal No.43/2003. The Appellate Court as per judgment dated 15.07.2006 allowed the appeal in part confirming the conviction and sentence of the revision petitioner/1st accused under (a) of the Abkari Act. However, learned Sessions Court set aside the order of conviction and sentence under (i) of the Abkari Act. Further, the Appellate Court acquitted the 2nd accused.

6. Impugned the order of the Appellate Court, the accused preferred this revision.

7. Heard. Perused the records.

8. PW1, Assistant Excise Inspector, Kollam detected the case. According to PW1, while he was conducting patrol duty along with his party on 11.06.1996, he saw the 1st accused passing through a puramboke land near the petty shop of Divakaran carrying two bottles of illicit arrack. On further questioning, he stated that arrack was supplied to him by the 2nd accused who was the salesman in the petty shop situated at Kallumthazham.

9. The revision petitioner/1st accused stated that the arrack was supplied to him by the 2nd accused. PW1 has also detected 30 bottles of arrack each having a capacity of 375 ml from a sack kept nearby and 22 bottles of arrack from a cardboard box. The arrack bottles were seized as per Ext.P1 seizure mahazar. PW2 and PW3 are the two independent witnesses of the alleged seizure of illicit arrack. They turned hostile to the prosecution and even denied their signatures in Ext.P1 seizure mahazar. PW5 is the Preventive Officer and he also supported the prosecution case. PW5 identified MO1 and MO2 series bottles which contained illicit arrack. The Circle Inspector of Police registered Ext.P2 occurrence report, conducted the investigation and filed the chargesheet. Ext.P3 is the chemical analysis report.

10. The learned counsel for the revision petitioner Adv.Vipin Narayan submitted that, both the Courts erred in convicting the revision petitioner/1st accused. It is submitted that, to bring home the charge under Section 55 (a) of the Abkari Act, there must be positive evidence to the effect that the possession was in course of the same being illegally imported as per the dictum laid down in Mohanan v. State of Kerala [2007(2) KLT 447]. The learned counsel for the revision petitioner would further submit that, both the independent witnesses turned hostile to the prosecution and it would be unsafe to convict the revision petitioner, only on relying the evidence of the official witnesses.

11. The learned counsel for the revision petitioner/1st accused would further submit that the delay in producing the contraband article