Smell Of Alcohol Not Enough To Prosecute Person For Consuming Alcohol In Public: Kerala HC [Read Order]

In a case of its own kind where a man was being prosecuted for consuming liquor in public on the basis of smell of alcohol while the alco meter gave a “strange result” of 12,777.3 mg per 100 ml, the Kerala High Court has said that a person cannot be prosecuted on the basis of mere smell of alcohol.

Justice P Ubaid quashed the prosecution of the petitioner who was being prosecuted under Section 294(b) IPC (using obscene words in public) and under Section 15(c) of the Kerala Abkari Act (prohibition on consumption of liquor in public place) by the Judicial First Class Magistrate Court – I, Vaikom, in the case registered suo motu by the Sub-Inspector of Police, Vaikom.

The prosecution case was that the petitioner was found consuming liquor at the side of the public road in front of the Taluk Head Quarters Hospital, Vaikom at 9.50 pm on July 2 and when the Sub Inspector approached him, the petitioner scolded him in filthy language.

The petitioner was arrested on the spot by the Sub Inspector and he was subjected to alco meter test. The petitioner was also taken to the Taluk Head Quarters Hospital, where he was examined by a doctor.

The petitioner challenged his prosecution under the said sections saying there was no material to proceed against him.

The court noted, “This is a case where the prosecution relies mainly on the certificate of drunkenness issued from the Taluk Head Quarters Hospital, Vaikom. Though the petitioner was subjected to Alco Meter Test, the device gave a strange result of 12,777.3 mg per 100 ml. When the court required explanation regarding this strange result, the police submitted a statement of admission that it is a wrong result, and it happened probably due to the mechanical defect of the device.”

The FIR did not show what words were used against the sub-inspector and the for prosecution under Section 15(c) of the Kerala Abkari Act, it must be proved that the accused was found consuming liquor at a public place while in this case, a very small quantity of 50 ml of liquor contained in a bottle of 1 litre capacity was seized but not sent for chemical analysis.

The court referred to its precedents in cases titled State of Kerala v. Sreedharan  and Rajeev. P and others v. State of Kerala and another, wherein it was held that on the evidence of smell of alcohol alone, an accused cannot be found guilty under section15(c) of the Kerala Abkari Act and that in a case where sufficient quantity of liquor was seized by the police, a report of analysis must be obtained identifying the liquid as liquor.

The bench also referred to another case titled Soman v. State of Kerala, where the high court had held that the evidence of the excise officials that the liquid was identified as liquor by its taste and odour, is not sufficient for a conviction under Section 15(c) of the Act.

“Soman's case is a case where the accused was subjected to Alco Meter Test, and a positive result was obtained. Added to that, there was the evidence of the Excise Officials also that the liquid was identified as liquor by its 'taste and odour'. But in this case, the position is different. The Alco Meter Test gave a strange result of exorbitant reading, which is now admittedly a wrong reading. No value can be attached to the Alco Meter reading,” said Justice Ubaid.

Court applies provisions of Motor Vehicles Act

The court, finding the Abkari Act wanting, relied on provisions of the Motor Vehicles Act with regard to drunken driving.

“In the Motor Vehicles Act, there are some provisions dealing with drunken driving, and the procedure for detection of the presence of alcohol in the blood of the drunken driver. The scheme of the provisions in Sections 203 and 204 of the Motor Vehicles Act will show that in a case where, breath test is not possible, or where the accused refused to give breath sample for analysis, the concerned person will have to be taken to a hospital, where a medical practitioner will have to collect his blood sample, subject it to laboratory test, and find out the alcohol content in the blood. Such provisions are not there in the Kerala Abkari Act,” noted Justice Ubaid.

“Though such provisions are not there in 'the Act', the procedure contained in the Motor Vehicles Act to meet such identical situations can be applied in the case of prosecution and proceedings under Section n15(c) of the Act,” he said.

“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 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 definitely be an abuse of legal process. I find that if the present prosecution 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,” concluded Justice Ubaid.