JUDGMENT

Aggrieved by the judgment dated 04.09.2008 passed by the Additional Sessions Court (Fast Track (Adhoc-II)), Kozhikode, in Sessions Case No.1047/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 03.05.2004 at

2.00 p.m., the accused was found in possession of 1½ litres of arrack in a Can on the side of the Poyya- Pilassery road at Kunnamangalam in violation of the provisions of the Abkari Act.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence.

4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P6 and MO1.

5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted her thereunder.

6. Heard Sri T.R. Harikumar, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- (i) The prosecution has not succeeded in establishing the identity of the person who was carrying the contraband substance at the scene of occurrence.

(ii) The prosecution has not established the tamper-proof despatch of the sample from the Court to the Laboratory.

8. The alleged seizure was effected on 03.05.2004.

The case of the prosecution is that the appellant/accused could not be arrested from the scene of occurrence as no woman police constable/woman Excise guard was available. In Ext.P1 seizure mahazar, the detecting officer has not narrated any features to identify the person who had carried the contraband substance. The official witnesses who identified the accused in the box had no case that they had previous acquaintance with the accused. They identified the accused in Court in the year

2008 after a long lapse of four years.

9. It is well settled that where a witness identifies an accused, who is not known to him, in the Court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: Kanan and others v. State of Kerala [AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]. So, on this ground alone the prosecution must fail.

10. The learned counsel for the appellant/accused contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it was handled by different officials. No property list was produced and marked in this case. There is