Suresh Kumar; Anwar Hussain @ Anwar; Suresh Kumar; Shibu C. Jacob v. State of Kerala

Crl.M.C.No.2288/2020 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944_ _CRL.MC NO. 2288 OF 2020_ _AGAINST THE ORDER/JUDGMENT IN ST 3026/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, PATHANAMTHITTA_ ## _PETITIONER/S:_ - _1 SURESH KUMAR, AGED 49 YEARS, S/O.RAGHAVAN, KARTHIKA VEEDU, VALLIKODU, VALLIKODU VILLAGE, KONNY TALUK, PATHANAMTHITTA._ _2 P.A.ANWAR HUSSAIN @ ANWAR, AGED 48 YEARS, S/O.AHAMMED RAWTHER, CHARIVU PURAYIDOM VEEDU, MANKULAM, KONNY P.O., KONNY VILLAGE AND TALUK, PATHANAMTHITTA._ _3 SURESH KUMAR, AGED 56 YEARS, S/O.SURENDRAN, SREENILAYAM VEEDU, MURINJAKAL P.O., KOODAL VILLAGE, KONNY TALUK, PATHANAMTHITTA._ _4 SHIBU C.JACOB, AGED 46 YEARS, S/O.JACOB VARGHESE, JEEVAN BHAVAN, PAIVALLY BHAGOM, OMALLOOR P.O., PATHANAMTHITTA._ _BY ADVS.S.RAJEEV K.K.DHEERENDRAKRISHNAN V.VINAY_ _D.FEROZE_ Crl.M.C.No.2288/2020 2 ## _RESPONDENT/S:_ _STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO.313/2012 OF KONNY POLICE STATION, PATHANAMTHITTA DISTRICT)._ _SRI.SUDHEER GOPALAKRISHNAN-PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON_ _16.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.2288/2020 3 ## **O R D E R** The petitioners are the accused No.1 to 4 in S.T.No.3026 of 2018 on the file of the Judicial First Class Magistrate CourtII, Pathanamthitta. Aforesaid case arises from Crime No.313 of 2012 under Section 15 C of the Kerala Abkari Act. 2. The prosecution case is that, on 31.03.2012 at 5.20 pm while the police were conducting patrolling duty they got information that the officials of Aruvappulam Village Office are consuming liquor inside the office. A search was conducted immediately and thereupon it was found that the petitioners were consuming alcohol inside the Village Office. Annexure-I FIR was registered in such circumstances and after completing the investigation thereon Annexure-II final report was submitted. This Crl.M.C. is filed for quashing all further proceedings pursuant thereto. 3. Heard Sri.Vinay V., learned counsel for the petitioners and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. The specific case of the petitioner is that Annexure-II final report do not contain the necessary materials for establishing the offence under Section 15C of the Crl.M.C.No.2288/2020 4 Abkari Act. According to him, the entire case of the prosecution relies upon the drunkenness certificate issued by a doctor, wherein it is only stated that there was a smell of alcohol. At the same time, in all the drunkenness certificates of the accused persons, it is mentioned that none of the petitioners was under the influence of alcohol. The learned counsel for the petitioner points out that the percentage of alcohol is not determined by taking any scientific test in this regard, and the same is not mentioned in the drunkenness certificate as well. It is also contended that there is no evidence to show that what was allegedly consumed by the petitioners was alcohol. The articles allegedly seized from the possession of the petitioners were also not sent for any scientific examination, and in the absence of any such evidence, the offence under Section 15C of the Abkari Act would not get attracted, contends the learned counsel for the petitioners. He places reliance upon the decisions rendered by this Court in **Mukesh M.K. v. State of Kerala [2018(3) KLT 386]** and **Rajendran Pillai v. State Rep.by SHO, Kunnicode Police Station and Another [2019 (4) KLT 438]** . Crl.M.C.No.2288/2020 5 4. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. 5. I have gone through the records. It is true that, apart from the drunkenness certificate, which forms part of Annexure-II, there are no documents produced by the prosecution to substantiate the allegations against the petitioners. The question of the adequacy of the drunkenness certificate for establishing the offence under section 15C of the Abkari Act, was explicitly considered by this Court in **Mukesh M.K’s case** (supra), and it was observed as follows: “In a prosecution under Section 15(c) of the Act, where the prosecution relies on the oral evidence of the Officials regarding taste and odour, and where there is no Alco Meter test result, the proper procedure must be to collect the blood sample of the accused at a hospital, and get the percentage of alcohol in the blood detected by laboratory test. Such a test was not conducted in this case. The Doctor’s Certificate produced in this case is only that the person had consumed alcohol, but that finding is based on the smell of alcohol detected by the Doctor. There is no scientific material to show that alcohol was detected in the blood of the accused. Practically, the only material is that there was smell of alcohol when he was brought at the hospital. Such smell need not always be due to the consumption of liquor. In a case like this, the Crl.M.C.No.2288/2020 6 prosecution will have to prove that the accused was found consuming liquor at a public place, and that the liquid he consumed was identified as liquor. So it is very important that there must be evidence to prove that the liquid seized by the Police or consumed by the accused was identified as liquor. When there is no material to prove that aspect, the prosecution will proceeds on the basis of the available materials it will not reach anywhere, and it will definitely be a sheer waste of time and an abuse of legal process. The prosecution is liable to be quashed.” ## 6. Similarly, in **Rajendran Pillai’s** case (supra) also, the aforesaid question was considered in paragraphs Nos.8 and ## 9: “8. It is the bounden duty of the investigating officer to establish that smell of breath was free from other medicinal smell or that the person has consumed a particular type of alcohol namely toddy, whisky, rum, gin etc. It is also pertinent to note from Annexure-A5 that the blood sample of the petitioners was not taken by the investigating officer, for analysis in a Laboratory. 9. The essential ingredient of the offence under Section 15C of the Act being consumption of liquor in a public place, there must be evidence for the prosecution to establish intake of alcohol and that, in a public place. For that, the prosecution must have conducted tests to derive that not only smell of alcohol was there in the breath, but also the percentage of Crl.M.C.No.2288/2020 7 alcohol in the blood of the individual. If medicines were taken, there is possibility for smell of alcohol in breath, but it is unlikely that percentage of alcohol be detected in a test of blood in a Laboratory. Whereas in case of consumption of liquor, there is every possibility for the alcoholic content to be present in blood and its percentage could very well be ascertained in a test of blood in a Laboratory. The test, normally be held by the prosecution in cases of the nature is Alco Meter test.” 7. When the principles laid down by this Court in the aforesaid judgments are applied in this case, it can be seen that the mandatory requirements for establishing the offence are not complied with while submitting Annexure-II final report. The petitioners were not subjected to any medical examination to find the alcohol content in their blood or urine. Similarly, as pointed out by the learned counsel for the petitioners, no materials were also placed to determine whether the liquid allegedly consumed by the petitioners was alcohol. The contents of the bottle and glasses found on the premises were not subjected to any scientific test for determining the traces of alcohol. In the absence of any evidence in this regard, the prosecution for the offences under Section 15C of the Abkari Crl.M.C.No.2288/2020 8 Act would not be attracted, as held in the decisions rendered by this Court in **Mukesh M.K.** and **Rajendra Pillai** (supra). In such circumstances, I am of the view that the prosecution against the petitioners pursuant to Annexure-II Final Report is a clear abuse of the process of court, which warrants interference by this Court under Section 482 Cr.P.C. In the result, this Crl.M.C. is allowed and Annexure-II final report submitted in Crime No.313 of 2012 of Konny Police station and all further proceedings in ST.No.3026 of 2018 on the file of the Judicial First Class Magistrate Court-II, Pathanamthitta, against the petitioners are hereby quashed. _Sd/-_ **ZIYAD RAHMAN A.A. JUDGE** DG/17.6.22 Crl.M.C.No.2288/2020 9 ## _APPENDIX OF CRL.MC 2288/2020_ _PETITIONER ANNEXURES_ _ANNEXURE I CERTIFIED COPY OF THE FIRST INFORMATION REPORT ALONG WITH THE CERTIFICATE OF DRUNKENNESS OF THE ACCUSED. ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.313/2012 OF KONNY POLICE STATION._