Shybu Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 02ND DECEMBR 2011 / 11TH AGRAHAYANA 1933** **Crl.MC.No. 3315 of 2011()** **------------------------------** **CRIME NO.74/2011 MEENANGADI POLICE STATION C.C. NO.158/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, SULTHAN BETHERY.** **...** **PETITIONER(S):** **-------------------** **SHYBU MATHEW, S/O.MATHEW CHERIYIL HOUSE PERINGALLOOR DESAM, PADICHIRA VILLAGE, OF VAYANADU DISTRICT.** **BY ADVS. SMT.SARITHA THOMAS ALEX M. SCARIA** **RESPONDENT(S):** **--------------------** **STATE OF KERALA** **REPRESENTED BY SUB INSPECTOR OF POLICE MEENANGADI POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **CRMC. NO.3315/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURER:** **ANNEXURE 1:FIRST INFORMATION REPORT DATED 31/03/2011 IN C.C. NO.158/2011 OF JUDICIAL FIRST CLASS MAGISTRAT COURT - 1, SULTHAN BATHERY.** **ANNEXURE 2:ARREST MEMO DATED 31/03/2011 IN C.C. NO.158/2011 OF JUDICIAL FIRST CLASS MAGISTRAT COURT - 1, SULTHAN BATHERY.** **ANNEXURE 3:FINAL REPORT DATED 31/03/2011 IN C.C. NO.158/2011 OF JUDICIAL FIRST CLASS MAGISTRAT COURT - 1, SULTHAN BATHERY.** **ANNEXURE 4:CERTIFICATE OF DRUNKENESS DATED 31/03/2011 IN C.C. NO.158/2011 OF JUDICIAL FIRST CLASS MAGISTRAT COURT - 1, SULTHAN BATHERY.** ## **RESPONDENT'S ANNEXURES: NIL** **TRUE COPY** **P.A. TO JUDGE** **svs** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.M.C.No.3315 of 2011 ---------------------------------------------------Dated this the 2[nd] day of December, 2011** ## **Order** The petitioner is the sole accused in CC No.158 of 2011 on the file of the J.F.C.M.Court-I, Sulthan Bethery. The charge sheet was laid against him by the police alleging commission of offence under Section 118(a) of the Kerala Police Act, 2011. The allegation against him is that he was found intoxicated in a public vehicle (Bus No.KL-12D-9218) and was in a rioting condition incapable of looking after himself and causing nuisance to the passengers in the bus. The incident, according to the prosecution, took place on 31.3.2011 at 5.50 AM. The petitioner contends that the case is a false and foisted one. According to him he was sitting comfortably in his seat. When another passenger demanded, he was not ready to vacate the seat and he happened to laugh at him in a sarcastic manner. Thereafter the police came and arrested him. 2. The learned counsel for the petitioner submits that ## **Crl.M.C.No.3315 of 2011 2** the certificate issued by the doctor would show that he was not under the influence of liquor. The petitioner contends that the allegations made in the FIR and in the charge sheet do not disclose an offence under Section 118(a) of the Act and as such the final report filed by the police is to be quashed. 3. Section 118(a) of the Kerala Police Act, 2011 reads: ## **“118. Penalty for causing grave violation of public order or danger.-** Any person who,- (a) is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself; ....................................................... shall, on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.” The word 'intoxicated' is not defined under the Act. The learned counsel would submit that in Advanced Law Lexicon by P.Ramanatha Aiyar, the meaning of the word 'intoxicated' is given as: “A man is intoxicated whenever he is so much under ## **Crl.M.C.No.3315 of 2011 3** the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect. A man to that extent under the influence of liquor that parties coming in contact with him or seeing him would readily know that he was under the influence of liquor by his conduct or his words or his movements would be sufficient to show that such party was intoxicated. The word 'intoxicated' is synonymous with 'drunk', and in the Standard Dictionary 'drunk' is defined as under the influence of intoxicating liquor to such an extent as to have lost the normal control of one's bodily and mental faculties, and commonly to evince a disposition to violence and quarrelsomeness.” The learned counsel would submit that mere smell of alcohol cannot be construed to mean that the person was intoxicated or under the influence of any liquor. The expression 'under the influence of liquor' is not used in Section 118(a). The word 'intoxicated' occurring in that section itself is sufficient to hold that the person must certainly be under the influence of liquor, the learned counsel Mr. Alex M. Scaria submits. Mere smell of alcohol ## **Crl.M.C.No.3315 of 2011 4** or any narcotic drug may not be sufficient to hold that he was intoxicated. In this connection, the corresponding provision, Section 51 of the repealed Kerala Police Act, 1960 can also be referred to here: ## **“51. Penalty for being drunk and for disorderly** **behaviour.-** Whoever in any street or public place or in any Court, police station or other public office or in any place of public amusement or resort or on board any passenger boat or vessel or in any public passenger vehicle, is found drunk and incapable of taking care of himself or behaves in a disorderly manner under the influence of drink shall, on conviction, be punished(a) for a first offence, with imprisonment for a term which may extend to one month and with fine which may extend to two hundred rupees: (The remaining part is omitted as unnecessary). The word 'intoxicated' occurring in Section 118(a) of the new Act is almost identical to the word 'found drunk' used in Section 51 of the Old Act. Of course, in Section 51, in order to attract the offence thereunder, it must also be proved that the accused was not only found drunk but he ## **Crl.M.C.No.3315 of 2011 5** was also incapable of taking care of himself. The second part of Section 51 of the old Act mentioned above makes it clear that if the person behaves in a disorderly manner under the influence of drink that will also attract the offence under Section 51 of that Act. 4. The word 'intoxicated' does not mean that the man is dead drunk. In the Law Lexicon mentioned above, it is also stated that in the ordinary etymological meaning the term 'intoxication' means, a condition produced by excessive use of alcoholic stimulants. The decision of the Madras High Court in **Re Palani Goundan** (AIR 1957 Madras 546) has also been relied upon in this connection. There an accused was found having the symptoms, namely; smelling of arrack in breath, redness of the eyes and dilation of pupil, the tongue was clean and dry and the speech was incoherent and the gait was staggering. It was held in that case that the accused was in a state of intoxication. The learned counsel for the petitioner submits that in the present case, ## **Crl.M.C.No.3315 of 2011 6** no such material is there and as such it cannot be said that the accused was in a state of intoxication. The decision cited supra was rendered in a case under the Madras Prohibition Act, 1937. There also the word 'intoxication' was not defined. The decision in **Satya Rao v. State** (AIR 1954 Andhra Pradesh 4) cited by the learned counsel was also rendered interpreting the word intoxication occurring in Madras Prohibition Act. 5. The decision in **Narayanan Nair v. State** (AlIR 1952 T.C. 239) has also been cited by the learned counsel Mr.Alex M.Scaria wherein it was held that the word 'intoxication' applies only to the excessive use of intoxicating liquors or drugs. and that the state of intoxication may be taken to be practically equivalent to a state of drunkenness, so that the person intoxicated was incapable of knowing the consequences of his action. 6. A mere smell of alcohol is not sufficient to hold that a person was intoxicated. But the observations made by the ## **Crl.M.C.No.3315 of 2011 7** doctor as to whether there was smell of arrack/alcohol in the breath, redness of the eyes and dilation of pupil and whether the speech was incoherent and gait was unsteady or staggering may be relevant factors to hold whether the accused was intoxicated or not. The state of intoxication may be taken to be practically equivalent to a state of drunkenness. For that purpose whether the accused was incapable of knowing or realising the consequences of his action, whether there was weakening of self-control and weakening of his critical self awareness etc. would also assume relevance. The evidence that may be given by the witnesses as to whether the accused was found walking in an unsteady manner or whether his conduct or behaviour towards his fellow passengers or his fellow men was such that it could be inferred that the person was not in proper control of himself, whether there was disorderly behaviour or whether he was deprived of his sense of morality may be some of the relevant factors to find whether the accused ## **Crl.M.C.No.3315 of 2011 8** was intoxicated or in rioting condition or was incapable of looking after himself. 7. The expressions 'rioting condition' and 'incapable of looking after himself,' which are used disjunctively in Section 118(a), would make it clear that in order to find the accused guilty it is not necessary for the prosecution to prove that the accused was not only intoxicated but was also behaving riotously and that the accused was in such a condition that he was incapable of looking after himself. The learned counsel for the petitioner would submit that if such an interpretation is taken then a physically handicapped person who is incapable of looking after himself can also be held guilty under Section 118(a). But that submission cannot be accepted since the expression 'incapable of looking after himself ' used in Section 118(a) is in relation to the intoxication or such a condition or behaviour; it has nothing to do with the physical incapacity or incapability of the person mentioned therein. The ## **Crl.M.C.No.3315 of 2011 9** expression 'incapable of looking after himself' cannot be understood divorced from the context in which it is used. In other words, the accused must be incapable of looking after himself because he had consumed liquor or other intoxicating substance. If a person is found indulged in disorderly behaviour and if it is proved that he had consumed liquor or other intoxicating substances, irrespective of the degree of drunkenness, he can be held to have committed the offence under Section 118(a). If a person is proved to have consumed liquor and he was seen indulged in disorderly behaviour then certainly it may be a relevant factor to find that he was in “an intoxicated manner” irrespective of the proof of degree of drunkenness. In Blacks Law dictionary (seventh edition) the meaning of the word intoxication is given as “A diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption; drunkenness” ## **Crl.M.C.No.3315 of 2011 10** 8. The expression 'rioting condition' used in section 118(a) would mean that the person was behaving in a way that is violent and/or not in control. Behaving in a noisy and/or violent or tumultuous manner may come with in the expression “rioting condition” occurring in Sec.118(a). The bahaviour which is contrary to law which may tend to disturb the sense of morality of the public, or which may affect the public peace or decorum may also be termed as riotous or disorderly behaviour. If a person's behaviour is such that it was causing nuisance to the public or is offensive likely to affect the decorum, that may also be a relevant factor to decide whether the accused was in a rioting condition or incapable of looking after himself. 9. So far as the case on hand is concerned, there is specific allegation to the effect the accused had consumed liquor. The words used in the FIR that the accused was in 'മദ�ലഹര�' would, according to the learned Prosecutor, indicate that he was found in an “intoxicated manner”. It ## **Crl.M.C.No.3315 of 2011 11** was also mentioned that his behaviour was unsteady and quarrelsome. It is stated in the FIR that on getting information, the police officer reached there. The accused was found in the condition as mentioned earlier. The learned counsel for the petitioner would submit that the punishment prescribed for the offence is imprisonment for a term which may extend to three years or with fine not exceeding Rs.10,000/- or with both. Since the punishment prescribed for the offence is as mentioned above, the police officer cannot file the report as if it is a petty case. 10. Merely because a person has consumed liquor and was found in a public place, it may not attract the offence under Sec.118(a). But he must have been found in an intoxicated manner or rioting condition or incapable of looking after himself as have been discussed earlier. Because the punishment prescribed for the offence is as mentioned above, the investigation should also be done seriously and not in a casual way. ## **Crl.M.C.No.3315 of 2011 12** 11. The learned counsel for the petitioner submits that if the accused was incapable of taking care of/ looking after himself or he was in an intoxicated condition then it would not have been possible for him to give his complete name and address to the police officer but the FIR shows that he did give those particulars. That may be a relevant aspect the petitioner can urge at the time of trial. It is not necessary to delve deep into those matters here. After completing the investigation, the charge sheet has already been filed by the police before the jurisdictional Magistrate. The contention that there is no material to sustain the charge on any of the grounds mentioned in Section 118(a) and so the charge sheet has to be quashed cannot be sustained. It is made clear that no finding has been entered in this case whether or not the allegations made in the charge sheet are sufficient to warrant a conviction. It would depend upon the evidence that may be adduced in the case. ## **Crl.M.C.No.3315 of 2011 13** 12. It was initially argued by the learned counsel for the petitioner that the Kerala Police Act – 2011 ( Act 8 of 2011) was published as per notification dated 20.04.2011 where as the incident took place on 31.03.2011 and as such the penal provision cannot have retrospective operation. In the book which was made available before court it was noted that the Act came into force w.e.f. 31.01.2011 and at the same time it was noted that the notification was of the date 20.04.2011. It was pointed out that in one case based on the fact that the notification was published only on 20.04.2011, it was held that the penal provision cannot have retrospective operation. Since there was doubt as to whether the notification was in fact published on 20.04.2011 and as to the reason why it was shown in the book that the Act has come into force w.e.f. 31.01.2011, the position was required to be clarified. The learned counsel, Sri. Alex. M. Scaria fairly submitted that in fact the Kerala Police Act - 2011 was published in the official ## **Crl.M.C.No.3315 of 2011 14** gazette on 31.01.2011 itself. It was made clear in Section 1(3) of the Act, that the Act shall come into force at once. Since the Act was published in the official gazette on 31.01.2011 there can be no doubt that the Act has come into force w.e.f. 31.01.2011. Therefore, it cannot be contended that the offence stated to have been committed on 31.03.2011 cannot be tried as per the provisions of Kerala Police Act 2011. I do appreciate the fairness shown to the court by the learned counsel Sri. Alex M. Scaria. 13. It is also pointed out by the learned counsel that Section 118 is an offence permitted to be compounded under Section 126(2) of the Act. But the compounding fees to be levied in respect of each category of offences has not been notified by the State Police Chief. 14. It is also submitted by the learned counsel that the accused is at present working abroad and had the notification been issued, it would have been possible for the petitioner to request for composition of the offence so that, ## **Crl.M.C.No.3315 of 2011 15** the petitioner could have avoided the stigma of conviction, if he requests for composition. The Act had come into force w.e.f. 31.01.2011. More than 10 months have elapsed. There is no reason to hold that the State Police Chief is not likely to notify the compounding fees at the earliest. In the light of what has been stated above this Crl.M.C. is dismissed. It is open to the petitioner to raise all his contentions before the learned Magistrate by filing appropriate applications before that court, in which case, the applications will be disposed of by the learned Magistrate in accordance with law. Copy of the order to be furnished to the learned Director General of Prosecutions (vide paragraph No.13). ## **N.K.BALAKRISHNAN, JUDGE** srd/smvd