A conviction for possession of contraband necessitates clear evidence of ownership, proper chain of custody, and reliable witness identification.

JUDGMENT

Aggrieved by the judgment dated

3.10.2008 passed by the Additional Sessions Court Fast Track (Adhoc-II), Kozhikode, in SC No.1063/2006, the accused has preferred this appeal.

2. The trial court convicted the accused for the offence punishable under Section 8 (2) of the Abkari Act .

3. The prosecution case is that on

19.02.2005 at 6.15 p.m., the accused was found carrying 1½ litres of illicit arrack in a can on the public road at Thazhekkode in Kozhikode Taluk.

4. The Excise Inspector, Kunnamangalam Range, after completion of the investigation, submitted final report against the accused alleging offence punishable under Section 8 (2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Thamarassery. The case was committed to the Sessions Court, Kozhikode from where it was made over to the trial court. On appearance of the accused, charge was framed against her for the offence under Section 8 (2) of the Abkari Act. The accused pleaded not guilty and therefore, she came to be tried by the learned Additional Sessions Judge for the aforesaid offence.

5. The prosecution examined PWs 1 to

5 and proved Exts.P1 to P5 and MO1.

6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence she was called upon to enter on her defence and to adduce the evidence, if any, she may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, passed the impugned judgment.

7. Heard Sri.R.Bindu Sasthamangalam, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondents.

8. The learned counsel for the appellant submitted that there is absolutely no evidence to establish that the appellant/accused was carrying the contraband substance as alleged by the prosecution. The learned counsel further contended that the prosecution miserably failed to establish that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory.

9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.

10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.

THE POINT

11. PW1, the Excise Preventive Officer, Kunnamangalam Range detected the offence. He gave evidence that on 19.02.2005 at 6.15 p.m., the accused was found carrying a can containing illicit arrack through the public road at Thazhekkode in Kozhikode Taluk towards Vattoliparambu. PW1 deposed that he seized the can from the possession of the accused and found that it contained illicit arrack. He drew 180 ml of arrack from the can as sample and sealed the sample bottle as well as the can containing residue of the liquor. According to PW1, as no woman constable was available, the accused could not be arrested. PW1 entrusted the thondi articles with PW5, another Excise Preventive Officer, who was in charge of the Excise Inspector. PW2, the Excise Guard, who had accompanied PW1, supported the version of PW1. PWs3 and 4, the independent witnesses, did not support the prosecution version that the accused was found in possession of the illicit arack as alleged.

12. The learned counsel for the accused contended that the prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance. PWs1 and 2, the official witnesses, gave evidence that the accused was not arrested from the scene. PW1 further stated that no attempt was made to arrest the accused later. The Excise Inspector, Kunnamangalam Range, who conducted the investigation also made no attempt to arrest the accused.

13. It is pertinent to note th