Crl.MC.No. 2292 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** ## **Crl.MC.No. 2292 of 2019** **IN ST NO.428/2018 of JUDICIAL FIRST CLASS MAGISTRATE COURT -III,PALAKKAD** **CRIME NO.598/2017 OF Hemambika Nagar Police Station, Palakkad** ## **PETITIONER/4th, 7th and 8 th ACCUSED :** - **1 SUJITH KUMAR.S., AGED 33 YEARS S/O.SUDHAKARAN,LAKSHMI NIVAS, ATHANIPPARAMBU, OLAVAKKODE,PALAKKAD-678 002** - **2 DHANESH, AGED 31 YEARS S/O.KRISHNADAS,CHERUKKATT HOUSE, PUDUPPARIYARAM, PALAKKAD-6789 731** - **3 LIJO, AGED 35 YEARS S/O. JOSE,SERENITY VILLA, NEAR RAILWAY HOSPITAL, RAILWAY COLONY, KALLEKULANGARA, PLAKAKAD-678 009 BY ADV. SRI.V.A.VINOD** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 THE SUB INSPECTOR OF POLICE HEMAMBIKA NAGAR POLICE STATION, PALAKKAD-678 010** - **2 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** ## **(PP) SRI. C.N. PRABHAKARAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2292 of 2019 2** ## **ORDER** The prayer in the petition is to quash the proceedings as against the petitioner in S.T No.428/2018 of Judicial First Class Magistrate Court-III, Palakkad in Crime No.598/2017 of Hemambika Nagar Police Station, Palakkad. 2. S.T No.428/2018 is a prosecution initiated on the basis of a final report laid by the S.I of Police, Hemambika Nagar Police Station on 21.11.2017 before the Judicial First Class Magistrate-III, Palakkad, chargesheeting eight accused for an offence punishable under Section 15(c) of the Abkari Act (for short, 'the Act'). 3. The allegation of the prosecution was that on 13.08.2017, at 15.10 hrs, while the S.I of Police, Hemambika Nagar Police Station and other Police men were on patrol duty, they found about eight persons assembled by the side of Maratuparambu, Erattakulam Road consuming liquor to the annoyance of the public. Watching the officials proceeding to them, except one all others rushed from the scene. The person available was arrested therefrom. One autorickshaw and 7 two wheelers parked at the spot were seized. Except one vehicle bearing Registration No. KL8U/8503, other vehicles were released on kachit after preparation of Seizure Mahazar. Empty bottles having capacity of 1 litre with label Mc Dowells, Brandy, were also seized. One bottle **Crl.MC.No.2292 of 2019 3** having capacity of 500 ml, 5 liquor bottles, empty as well as filled ones, three bottles containing water and 3 glasses were also seized from the spot. The property seized alongwith the accused were produced before the court. Investigation was conducted and a final report was laid, after completion of the same, copy of which is appended to this petition as Annexure I. Copies of the First Information Report, Seizure Mahazar and Final Report prepared in the case were also appended to this petition in a compendious form as Annexure-I. Final report was taken on file by the Judicial First Class Magistrate Court III, Palakkad on file as S.T. No.428/2018. 4. In the aforesaid circumstances, the 4[th] , 7[th] and 8[th] accused have approached this Court in the present proceedings under Section 482 Cr.P.C seeking to quash S.T. No.428/2018 registered on it's file by the court on the basis of final report and all further proceedings initiated pursuant thereto as against the petitioners. The learned Public Prosecutor has placed the Case Diary for perusal. 5. Sri.V.A Vinod, the learned Counsel for the petitioner has contended firstly that the person who has detected the offence, conducted search and seizure, registered the crime and conducted investigation in the case on hand was not authorized to do so. According to him, the Officer being Junior Sub Inspector of Police **Crl.MC.No.2292 of 2019 4** is not an Abkari Officer empowered to act as such under Section 4 of the Act. Secondly, it is contended that the allegations in the final report do not attract an offence under Section 15(c), for which the petitioners stand chargesheeted. Contention thirdly raised was that no Alco Meter test was conducted, despite taking the 1[st] accused in custody from the place of occurrence itself. Alco Meter test, was also not conducted in respect of other accused since they had been taken into custody much later to the incident. In the absence of the conduct of an Alco Meter test, scientific materials are not available for the court to reach a conclusion beyond doubt that petitioners had been consuming alcohol at the relevant time. The contention fourthly raised was that apart from the 1[st] accused, the other accused were not arrested from the place of occurrence and in the absence of reliable materials available in the case, the identification and implication of them is doubtful. It is contended by the learned counsel that since the petitioners were not arrested from the spot, the prosecution will not succeed in establishing their involvement in the offence alleged in the crime. 6. Raising contentions as above, the learned counsel for the petitioners canvassed for quashing S.T No.428/2018 and all further proceedings initiated pursuant thereto, pending on the files of Judicial First Class Magistrate Court III, Palakkad. **Crl.MC.No.2292 of 2019 5** 7. The learned counsel for the petitioners have also relied on **Mukesh v. State of Kerala [2018 (3) KLT 386]** to contend that in case of failure to conduct Alco Meter test, from the spot, the proper procedure to be followed by the prosecution is to collect the blood sample of the accused at a Hospital and get the percentage of alcohol therein detected in an analysis at it's Laboratory. According to the learned counsel, Alco Metre test was not done by the prosecution in the case on hand and therefore, as stated in the decision cited supra, the prosecution was bound to analyze the blood sample taken from the accused at a Laboratory and thereby get the percentage of alcohol in the blood of the accused detected. It is urged in the absence of evidence to establish conduct of such an analysis of blood sample in a Laboratory, the prosecution case is only to fail. 8. A perusal of the Case Diary made available by the learned Public Prosecutor, would reveal that the 1[st] accused was examined by the Chief Medical Officer (for short, 'the C.M.O') of District Hospital, Palakkad and certificates of examination and drunkenness were issued. It is evidenced from the certificates incorporated in the Case Diary that the medical examination of the 1[st] accused was held on 13.08.2017, the date of detection of the offence itself. It was reported in the certificate of drunkenness that **Crl.MC.No.2292 of 2019 6** in the examination held, smell of alcohol was found in his breath. Eventhough, the Case Diary was examined in detail, this Court did not see any materials to evidence conduct of medical examination of the other accused after their arrest. 9. Therefore, the materials available with the prosecution will establish that Alco Meter test was not conducted by the prosecution. As per the prosecution, accused No.1 was arrested from the spot and in the breath test held, smell of alcohol was detected. In view of Mukeshs' case supra, on the basis of the breath test conducted and the report obtained therefrom, the prosecution cannot charge the accused for the offence punishable under Section 15 (c) of the Act. In the absence of Alco Meter test, the prosecution is bound to get the blood of the accused examined in a Laboratory so as to determine the percentage of ethyl alcohol present therein. Therefore, materials are totally lacking to establish the conduct of a valid test. The test conducted on the 1[st] accused was not sufficient as the content of alcohol present in the blood, is not ascertained 10. In the absence of evidence to show that a test as contemplated under Mukesh' case supra was held, the case of the prosecution is liable to fail. 11. As rightly putforth by the learned counsel for the petitioner, the detection and investigation in the case was **Crl.MC.No.2292 of 2019 7** conducted by a Junior Sub Inspector of Police, who is not a competent Abkari Officer. As per Section 4 of the Act, the Government is conferred with authority to issue notification appointing categories of Officers as Abkari officer for performing the activities as per relevant provisions of the Act. Gaining the authority from Section 4, the Government has issued a notification as SRO No.321/96 under Section 4 of the Act whereby, certain categories of officers both of the Police and Excise Department have been conferred with the power to transact as an Abkari Officer, under Sections 30 to 35, 38, 40 to 53 and 59 of the Act. S.R.O No. 321 of 1996 being relevant contextually is extracted hereunder : ## **“S.R.O No.321/96** In exercise of the powers conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on abkari Officers, in the sections aforesaid. This notification shall come into force with immediate effect. (G.O(P) No.69/96/TD dt. 29-3-1996)]” 12. Therefore, officers notified as above alone are empowered to transact as Abkari Officers. In the case on hand, the person who has detected the offence, seized and investigated the **Crl.MC.No.2292 of 2019 8** case being a Junior Sub Inspector of Police, he is not an officer empowered to do so. As per notification SRO 321/96 the officer who has detected the offence, conducted the search, seizure and investigation, being not an empowered officer, the prosecution case is liable to fail on that count also. 13. In view of the discussion herein above made, this Court is convinced that directing the petitioners, who are accused numbers 4, 7 and 8 to face the trial, would only be a futile exercise. For the reason, this court is inclined to allow the Crl.M.C. In the result, Crl.M.C stands allowed. S.T No.428/2018, pending on the files of Judicial First Class Magistrate Court-III, Palakkad and all proceedings initiated pursuant thereto, stands quashed forthwith as against the petitioners. ## **Sd/-** **MARY JOSEPH JUDGE** JJ/ **Crl.MC.No.2292 of 2019 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-I** **COPY OF THE FINAL REPORT IN S.T.NO.428/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PALAKKAD IN CRIME NO. 598/2017 OF HEMAMBIKA NAGAR POLICE STATION,PALAKKAD** **ANNEXURE-II TRUE COPY OF THE JUDGMENT IN CRL.M.C.NO.5628/2018 DATED 04.12.2018** **RESPONDENT'S EXHIBITS : Nill** **//TRUE COPY//**