Crl.Rev.Pet.No.238 of 2010 (C. T. Shashidaran v. State of Kerala and Others)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 Crl.Rev.Pet.No. 238 of 2010() ----------------------------CRA.2/2008 of SESSIONS COURT, LAKSHADWEEP , KAVARATTI ISLAND CC.7/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ANDROTT .................... REVN. PETITIONERS: APPELLANT/ACCUSED -------------------------------------- C.T.SHASHIDARAN, S/O.NARAYANAN NAIR, POLICE CONSTABLE, KAVARATTI POLICE STATION, KAVARATTI, LAKSHADEEP. BY ADV. SRI.P.V.KUNHIKRISHNAN SRI.HANSON.P.MATHEW RESPONDENTS: RESPONDENT/COMPLAINANT & STATE ------------------------------------------ 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, ANDROTT ISLAND, LAKSHADEEP. ADV. SRI.S.RADHAKRISHNAN,SPECIAL PUBLIC PROSECUTOR FOR LAKSHADWEEP ADMN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. -----------------------------------------Crl.R.P. No.238 of 2010** ## **----------------------------------------** Dated the 4th Day of April, 2011 ## **ORDER** Aggrieved by the conviction and sentence under Section 4 of the Lakshadweep Promotion Regulation, 1979, the accused in C.C No. 7 of 2003 on the file of the Judicial Magistrate of First Class, Andrott who is the appellant in Crl. A.No.2/2008 of the court of Sessions, Lakshadweep, Kawaratti Island, preferred this Crl.R.P. 2. The case of the prosecution is that on 15.10.2002 at 7.10.p.m., the accused was found at the Belapuram Junction of Andrott Island under the influence of alcohol and thus crime No.4/2002 was registered in the Andrott police station for the offences punishable under sections 3(j) and 4 of the Lakshadweep Prohibition Regulation, 1979 (hereinafter referred for short, 'The Regulation'). After the investigation in the above crime, police had preferred a report for the said offences upon which cognizance was taken for the offences under sections 3(j) and 4 of the Regulations and accordingly, instituted C.C No.7/2003. CRL.R.P 238/10 **-:2:-** During the trial, PWs 1 to 8 were examined and Exts.P1(a) to P5 were marked from the side of the prosecution. From the side of the defence, Exts.D1 to D4 were marked and no witness was examined. The trial court finally found that there is no evidence to show that the accused was consuming liquor in order to attract Section 3(j) of the Regulation and accordingly, it was found that Section 3(j) of the Regulation is not attracted and accordingly it was held that the accused is not guilty of the offence punishable under section 3(j) of the Regulation. Thus, though an acquittal was recorded for the offence under section 3(j) of the Regulation, the trial court has accepted the case of the prosecution under section 4 of the Regulation and, accordingly, found that he is guilty under section 4 of the Regulation. On such conviction, the revision petitioner is sentenced to undergo simple imprisonment for one month and to pay an amount of Rs.500/- as fine. The default sentence is fixed as simple imprisonment for 15 days. 3. Challenging the above conviction, sentence and CRL.R.P 238/10 ## **-:3:-** judgments of the trial court, though the accused preferred an appeal, by judgment dated 2[nd] January, 2010 in Crl.A.No.2/2008, the court of Sessions, Lakshadweep, Kavaratti Island, confirmed the conviction, but the substantive sentence is reduced into simple imprisonment for 15 days and the sentence of fine is not interfered with. It is the above conviction and sentence challenged in this Crl.R.P. 4. I have heard Sri P.V.Kunhikrishnan, the learned counsel appearing for the revision petitioner and Sri S. Radhakrishnan, the Special Public Prosecutor for Lakshadweep Administration. 5. Sri P.V.Kinhikrishnan, the learned counsel appearing for the revision petitioner strenuously submitted that in the present case, the prosecution has miserably failed to establish beyond reasonable doubt that the petitioner was found intoxicated as contemplated by Section 4 of the Regulation and therefore, the findings of the courts below are liable to be set aside. The learned counsel took me through the deposition of the witnesses CRL.R.P 238/10 **-:4:-** particularly, PW-6, the Doctor who examined the accused and issued Ext.P5 certificate, and submitted that there is no evidence to show that the petitioner was in a state of intoxication. In support of the above submission, the learned counsel very much placed reliance upon a decision of this court in **Narayanan Nair v. State (** 1952 KLT 159). 6. On the other hand, stoutly opposing the contentions and grounds raised by the counsel for the petitioner, the special Public Prosecutor submitted that the evidence including that of the medical evidence that consists of the deposition of PW6, and the documentary evidence such as Ext.P5 would show that the petitioner was found in a drunken stage and as rightly deposed by the witness, the petitioner was seen intoxicated and therefore, Section 4 of the above Regulation is attracted. Thus according to the learned counsel, no interference is warranted other than the conviction of the witnesses. 7. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner CRL.R.P 238/10 ## **-:5:-** as well as the learned Special Public Prosecutor. I have also perused the judgments of the courts below and the evidence and materials on record. Section 3(j) of the regulation states that, whoever consumes or buys liquor or any intoxicating drug shall be punished with imprisonment for a term which may extend to one year , or with fine which may extend to two thousand rupees, or with both. In the present case, though there was a charge against the revision petitioner for the said offence, the trial court has specifically found that no such offence is attracted. But out of the above mentioned two charges, the trial court found that the petitioner is guilty under Section 4 of the Regulation and the said findings is also confirmed by the appellate court. Section 4 of the Regulation reads: “Whoever is found in a state of intoxication in shall be with any public place punished imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both” 8. In the light of the facts and circumstances involved CRL.R.P 238/10 **-:6:-** in the case, and in view of the rival pleadings, the question to be considered is whether the prosecution has succeeded in establishing that the revision petitioner was found in a state of intoxication in any public place and whether the trial court as well as the appellate court are justified in their findings in favour of the prosecution and against the revision petitioner. The learned Public Prosecutor on the strength of the decision of this court in **Georgekutty v. State of Kerala (1991 (2) KLT 570)** submitted that in order to attract Section 4 of the Regulation, the prosecution need only to prove that the accused was found in a state of drunkenness. According to the learned Public Prosecutor, in the preset case, the evidence of the prosecution witness, particularly PW6, the Doctor who examined the revision petitioner, has categorically stated that, more particularly, as evidenced from Ext.P5, the revision petitioner had consumed alcohol and under its influence (intoxication). 9. In this juncture it is also relevant to consider the decision of this court in **Narayanan Nair v. State** (1952 CRL.R.P 238/10 **-:7:-** KLT 159) wherein this court, after considering the evidence involved in that case, has held that , “In this case, PW6 to whom the accused had been taken had, even if what he said was true, subjected the accused only to a very perfunctory examination. The certificate, Ext.B, given by PW6, stated that the accused was in a state of drunkenness for the following reasons, viz., smell of brandy from nose, redness of his eyes, very rapid pulse, and tremors of his hands. Those findings are absolutely insufficient to hold that the accused was in a state of intoxication”. 10. This court in the above decision, after having referred to several authorities, tried to explain what are the essential ingredients to be proved to hold that the accused was in the state of intoxication. The learned Special Public Prosecutor submitted that since the decision in **Georgekutty's case** is rendered by a Division Bench of this court, the said decision has to be followed by this court since the decision relied on by the revision CRL.R.P 238/10 ## **-:8:-** petitioner is a decision of a Single Bench of this court. Since the facts and circumstances involved in the above two cases are entirely different, and the facts and circumstances involved in **Narayanan Nair's** case is more identical to the case in hand, I have no hesitation to opt the dictum laid down by this court in **Narayanan Nair's case.** It is also relevant to note that in **Georgekutty's case, t** he offence was under section 51(a) of the Kerala Police Act 1961, where the charge is of drunkenness and the question considered is whether smelling of alcohol is sufficient to attract the above charge and whether urine or blood test was necessary in order to attract the said offence. Whereas, in the present case, the offence alleged is similar to that involved in the **Narayanan Nair's** case. The section of offence alleged in the above case is under section 9 of Travancore Prohibition Act VII of 1123, which reads as follows: “Whoever is found in a state of intoxication in any public place and whoever not having been permitted to consume any intoxicating drug in pursuance of this Act, is found in a state of CRL.R.P 238/10 **-:9:-** intoxication in any private place, shall be punished with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both”. 11. The above section is identical to Section 4 of the Regulation which I have already extracted in the foregone paragraph. It is in the above decision, this Court has held that the reasons stated by the doctor is smell of brandy from nose, redness of his eyes, very rapid pulse, and tremors of his hands, are not sufficient to hold that the accused was in a state of intoxication. PW6 in chief examination has stated that: **“** പ�ത� �ര�ശ��ധനയ�ല ആല�ശ��ള smell ഉളത�യ� ക�ണ�കയ�� speech interruption ഉളത�യ� ക�ണ�കയ�� ഉണ�യ�.” According to him, as per Ext.P5 he came to the conclusion that the accused had consumed alcohol. But during the cross examination he had admitted that on the basis of blood and urine test, one can definitely say that the person has consumed alcohol or not. According to him, he had directed to conduct the blood test since he was not certain whether the accused had consumed alcohol or CRL.R.P 238/10 **-:10:-** ## not. During cross examination, PW6 has further ## stated that: “പ�ത�യ�ട��ര�രത�ലന�ന�� �ര�ശ��നയ���യ� എ��ത blood അന� തടന ശ��ല�സ�ക�രട$റ വ�� ടക���ത�ര�ന�. He had also stated that: “ച�ല സ�ടപ�, ശ��മ�ശയ� മര�ന� ആയ�രശവദ മര�ന� ഇവ ഉ�ശയ�ഗ���നവര�ല� ആല�ശ��ള�ട$റ മണ� ഉണ��വ��. ” PW6 was specific during his cross examination that:, “ സ�ടമല ടക�ണ�� മ�പത� ഒര�ള ആല�ശ��ള കഴ�ച� എന� ത�ര�മ�ന�ച� ക2��.'' He had also stated that Police did not inform him about the result of the blood test and no report was furnished. It is true that in Ext.P5, PW6 has opined that the revision petitioner had consumed alcohol, and was under its influence (intoxicated). The title to Ext.P6 is 'certificate of drunkenness' which is the question that considered by the Division Bench in he decision cited supra. But in order to attract Section 4 of the Regulation, the prosecution has to prove and establish that the accused was in a state of intoxication. As rightly pointed out by the counsel for the petitioner in page 978 of Law Lexicon 1997 Edn. the state of intoxication as stated which reads as: CRL.R.P 238/10 **-:11:-** “ “State of intoxication” is graver and more extreme than that which is suggested by such words as “drunk” and “under the influence of drink”. “ The above difference in the definition of “state of intoxication” and “drunkenness” is more vital, when the facts and circumstances of the present case is considered. The trial court as well as the appellate court already acquitted the accused for a serious offence of consumption or purchase of liquor. But in the present case when state of intoxication though is a lesser offence, the responsibility of the prosecution is more than under section 3(j) of the Regulation. In order to attract section 3(j), the prosecution has to establish that the offender had just consumed, or purchased alcohol or liquor, whereas in order to attract section 4, the prosecution has to further establish and prove that the offender is “more grave and extreme state” than from the state of drunkenness. Therefore, the test laid down by this court in **Narayanan Nair's** case is relevant to find out whether CRL.R.P 238/10 **-:12:-** the revision petitioner/accused committed the offence under section 4 of the Regulation. But the evidence in this case are not sufficient to show that the revision petitioner was under the state of intoxication. According to me, though there was a charge for the offence under section 3 (j) and the petitioner is acquitted of such charge, in the absence of positive evidence in terms of the test laid down by this court in **Narayanan Nair's** case, it cannot be said that the petitioner was in the state of intoxication and thus he had committed the offence under section 4 of the Regulation. Thus according to me the conviction imposed by the trial court and confirmed by the appellate court against the revision petitioner under section 4 of the Regulation is not sustainable and the same is liable to be set aside and I do so. In the result, this Crl.R.P. is allowed setting aside the judgments of the trial court as well as the appellate court and acquitting the revision petitioner of all the charges CRL.R.P 238/10 ## **-:13:-** levelled against him under section 4 of the Regulation and he is set at liberty. V.K.MOHANAN, JUDGE kvm/-