The prosecution must establish a clear chain of custody and identify the accused adequately for a conviction under drug-related offenses.

JUDGMENT

Aggrieved by the judgment dated 29.09.2007, passed by the Additional Sessions Court (Special Judge for NDPS Act cases), Thodupzha in Sessions Case No.97/2007, the accused has preferred this appeal. The appellant/ accused was convicted under Sections 55 (a) and 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 14.06.2005 at 7.30 p.m., the accused was found in possession of 1.5 litres of Indian Made Foreign Liquor for sale in his vegetable shop at Muttom junction in violation of the provisions of the Abkari Act .

3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55 (a) and 55(i) 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 charges were framed against him for the offences punishable under Sections 55 (a) and 55(i) of the . The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences.

4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P10 and MO 1.

5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55 (a) and 55(i) of the Abkari Act and convicted him thereunder.

6. Heard Sri. M.V.Sabu, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondents.

7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds:- (1) The prosecution failed to establish the identity of the person who was allegedly in possession of the contraband substance at the place of occurrence.

(2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory.

8. The alleged seizure was effected on 14.06.2005 from a vegetable shop at Muttam. PW3, the Sub Inspector of Police, Kanjar detected the offence. According to PW3, on getting reliable information that accused was engaged in the sale of foreign liquor at his vegetable shop, the Police team headed by him proceeded to the place of occurrence. On seeing the Police party the accused ran away from the scene. The Police could not effect the arrest of the accused. In the subsequent seizure, the contraband substance was recovered from the shop. PW3 has no case that he had any previous acquaintance with the accused. The independent witnesses did not support the prosecution. PW3 had no opportunity to identify the accused after the incident. Going by his evidence he had only a fleeting glimpse of the person who ran away from the scene of occurrence.

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 19