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Whether Smell of Alcohol alone is Sufficient to Prove Consumption of Liquor during a Public Place

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:THE HONOURABLE MR. JUSTICE P.UBAID

WEDNESDAY,THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940

Crl.MC.No. 6109 of 2017

CC 887/2017 of J.M.F.C.-I, VAIKOM
CRIME NO.1609/2017 OF VAIKOM POLICE STATION, KOTTAYAM

PETITIONER(S)/ACCUSED :-

MUKESH M.K., AGED 29, S/O.MURALEEDHARAN NAIR,
SIVARCHANA, ARATTUKULANGARA, VAIKOM P.O.
BY ADVS.SRI.K.R.VINOD, SMT.M.S.LETHA

RESPONDENT(S) :-

STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI – 31.

BY PUBLIC PROSECUTOR SRI.C.K.PRASAD
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11-07-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 6109 of 2017 ()

APPENDIX
PETITIONER(S)’ ANNEXURES :-

ANNEXURE A1- THE CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.887/2017 IN THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VAIKOM.
RESPONDENT’S ANNEXURES :- NIL

//TRUE COPY//
P.A. TO JUDGE
P.UBAID, J.


Dated this a 11th day of Jul 2018
O R D E R

The postulant herein seeks orders quashing a assign opposite him underneath Section 294(b) IPC and underneath Section 15(c) of a Kerala Abkari Act (the Act) in C.C. No.887/2017 of a Judicial First Class Magistrate Court – I, Vaikom. The pronounced box was suo moto purebred by a Sub Inspector of Police, Vaikom.

2. The assign box is that a postulant was found immoderate wine during a side of a open highway in front of a Taluk Head Quarters Hospital, Vaikom during about 9.50 p.m. on 2.7.2017, and when a Sub Inspector approached him, a postulant scolded a Sub Inspector in dirty language. The postulant was arrested on a mark by a Sub Inspector, and he was subjected to Alco Meter Test. The postulant was also taken to a Taluk Head Quarters Hospital, where, he was examined by a doctor.

3. The postulant seeks orders on a belligerent that there is positively no element for a assign opposite him underneath Section 15(c) of a Kerala Abkari Act, or underneath Section 294(b) IPC, and that, if a assign deduction on a accessible materials, it would be nothing, though an abuse of authorised process. This is a box where, a assign relies especially on a certificate of immoderation released from a Taluk Head Quarters Hospital, Vaikom. Though a postulant was subjected to Alco Meter Test, a device gave a bizarre outcome of 12,777.3 mg per 100 ml. When a justice compulsory reason per this bizarre result, a military submitted a matter of acknowledgment that it is a wrong result, and it happened substantially due to a automatic forsake of a device.

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4. The FIR, or a final news does not uncover what words, or what indecent, or pornographic difference were used by a postulant opposite a Sub Inspector. No contention is compulsory to find that a assign underneath Section 294(b) IPC is utterly baseless. For a assign underneath Section 15(c) of a Kerala Abkari Act, it contingency be valid that a indicted was found immoderate wine during a open place. In this case, a really tiny apportion of 50 ml of wine contained in a bottle of 1 litre ability was seized, and a pronounced apportion was not sent for chemical analysis.

5. In State of Kerala v. Sreedharan [1965 KHC 267 = 1965 KLT 1002], a Division Bench of this Court hold that in a deficiency of a news from a Public Analyst, it would not be protected to rest on a smell of ethanol alone to find that a glass endangered is wine within a definition of Section 8 of a Prohibition Act. Of course, this is a assign underneath Section 8(2) of a Kerala Abkari Act. In Rajeev. P and others v. State of Kerala and another [2009 KHC 979], a singular Bench of this Court hold that on a justification of smell of ethanol alone, an indicted can't be found guilty underneath Section 15(c) of a Kerala Abkari Act, and that in a box where sufficient apportion of wine was seized by a Police, a news of research contingency be obtained, identifying a glass as liquor. In Soman v. State of Kerala [2011 (2) KLT 104], this Court hold that for a small reason that a glass seized was not subjected to chemical analysis, it can't be pronounced that a assign underneath Section 15(c) of a Kerala Abkari Act is not maintainable. In Rajeev’s case, it was hold that a justification of a Excise Officials that a glass was identified as wine by a ambience and odour, is not sufficient for a self-assurance underneath Section 15(c) of a Act. Soman’s box is a box where a indicted was subjected to Alco Meter Test, and a certain outcome was obtained. Added to that, there was a justification of a Excise Officials also that a glass was identified as wine by a ‘taste and odour’. But in this case, a position is different. The Alco Meter Test gave a bizarre outcome of unreasonable reading, that is now admittedly a wrong reading. No value can be trustworthy to a Alco Meter reading.

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6. In a Motor Vehicles Act, there are some supplies traffic with inebriated driving, and a procession for showing of a participation of ethanol in a blood of a inebriated driver. The intrigue of a supplies in Sections 203 and 204 of a Motor Vehicles Act will uncover that in a box where, exhale exam is not possible, or where a indicted refused to give exhale representation for analysis, a endangered chairman will have to be taken to a hospital, where a medical practitioner will have to collect his blood sample, theme it to laboratory test, and find out a ethanol calm in a blood. Such supplies are not there in a Kerala Abkari Act. Though such supplies are not there in ‘the Act’, a procession contained in a Motor Vehicles Act to accommodate such matching situations can be practical in a box of assign and record underneath Section 15(c) of a Act. In a assign underneath Section 15(c) of a Act, where a assign relies on a verbal justification of a Officials per ambience and odour, and where there is no Alco Meter exam result, a correct procession contingency be to collect a blood representation of a indicted during a hospital, and get a commission of ethanol in a blood rescued by laboratory test. Such a exam was not conducted in this case. The Doctor’s Certificate constructed in this box is usually that a chairman had consumed alcohol, though that anticipating is formed on a smell of ethanol rescued by a Doctor. There is no systematic element to uncover that ethanol was rescued in a blood of a accused.

Practically, a usually element is that there was smell of ethanol when he was brought during a hospital. Such smell need not always be due to a expenditure of liquor. In a box like this, a assign will have to infer that a indicted was found immoderate wine during a open place, and that a glass he consumed was identified as liquor. So it is really critical that there contingency be justification to infer that a glass seized by a Police or consumed by a indicted was identified as liquor. When there is no element to infer that aspect, a assign will really be an abuse of authorised process. we find that if a benefaction assign deduction on a basement of a accessible materials it will not strech anywhere, and it will really be a perfect rubbish of time and an abuse of authorised process. The assign is probable to be quashed.

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In a result, this Crl.M.C is allowed.

The assign opposite a postulant in C.C. No.887/2017 of a Judicial First Class Magistrate Court – I, Vaikom will mount quashed underneath Section 482 of a Code of Criminal Procedure.

Sd/-

P.UBAID
JUDGE

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