1. Petitioners who are accused in crime No.265 of 2019 have approached this Court seeking the following relief:-
“......to quash Annexure-A1 and A5 FIR and Final Report in Crime No:265/2019 of Kunnicode Police Station in Kollam District pending as S.T.No:1794/2019 on the files of the Judicial First Class Magistrate Court-III, Punalur as against the Petitioners.”
2. Against the petitioners, crime No.265 of 2019 was registered by Kunnicode Police Station alleging commission of offences punishable under Section 15C read with Section 63 of the Kerala Abkari Act (for short 'the Act'). Investigation was conducted in the crime and a final report was prepared and laid before the Judicial First Class Magistrate Court III, Punalur, which was taken on file by the court as S.T.No.1794 of 2019.
3. The contention of Sri.B.Mohan Lal, the learned counsel for the petitioners was that the prosecution proposed to rely on a Certificate of Drunkenness obtained from a medical practitioner associated with Taluk Headquarters Hospital, Punalur, the certified copy of which is appended to this petition as Annexure-A5 to establish it's case. The learned counsel has drawn the attention of this Court to entry No.10 in Annexure-A5 where smell of breath was reported as positive and entry No.18 to submit that the urine and blood of the petitioners were not taken and preserved for chemical examination. It is contended by the learned counsel that to establish an offence under Section 15C of the Act beyond reasonable doubt, the prosecution must conduct an Alco Meter test or else hold an examination of blood of the petitioners in a Laboratory. According to the learned counsel, in the case on hand, the only material available to connect the petitioners with the offence is Annexure-A5 and the prosecution has totally relied on smell of breath certified as positive therein to chargesheet the petitioners for the offence under Section 15C of the Act. The learned counsel has also relied on Mukesh V. State of Kerala [2018 (3) KLT 386] to rest his contention. An argument was also advanced that as indicated from the allegations in the chargesheet, the consumption of liquor was inside a car and it being not a public place, the offence is unlikely to be attracted and holding trial in the case for the offence will only be a futile exercise.
4. On the contrary, the learned Public Prosecutor has contended that by Annexure-A5, the prosecution has successfully established smell of alcohol in the breath of the petitioners and that itself will suffice to chargesheet and prosecute them for an offence under Section 15C of the Act.
5. In view of the rival contentions projected, this Court had a critical analysis of the materials available in the case on hand to see, whether sufficient safeguards are taken by the investigating agency to chargesheet the accused for the offence punishable under Section 15C of the Act. As rightly pointed out by the learned counsel, Annexure-A5 is only a Certificate of Drunkenness and as revealed from it's face it was purely meant for the purpose of Section 51 of the Kerala Police Act, 1960. As per entry No.10 of Annexure-A5, the breath test has yielded positive result. Even on consuming some medicines, there is likelihood of smell of alcohol to occur in the breath. As per the allegations, the petitioners were found by the prosecution as drinking alcohol inside a private car bearing Registration No.KL- 25-J-25 parked on the side of the road. On the basis it was urged by the learned counsel that the alleged act evenif believed as occurred, was in a car and not in public place and the offence will not be attracted.
6. By Abkari Amendment Act, 2010 [Act 3 of 2010] the words “public passenger vehicle as contained originally in Explanation (I) of Section 15 C was substituted by “public passenger or goods vehicle”. Similarly, Explanation (II) as originally available to Section 15C was substituted in the following manner with effect from 07.12.2009:
“Explanation II – For the purpose of Explanation I, “public passenger or goods vehicle” means a vehicle used for carrying passengers or goods for hire or reward, with or without a contract, express or implied, for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and includes a private vehicle in any public place.”
7. Therefore, by virtue of the aforesaid amendment, public passenger vehicle or goods vehicle or a private vehicle parked in any public place were also treated as public places for the purpose of Section 15C of the Act. Therefore, a person if found consuming liquor in any of the vehicles of the above nature, there cannot be any dispute against chargesheeting such person for the offence under Section 15C of the Act, for the reason that the consumption of liquor was not in a public place. In the aforesaid circumstances, the argument of the learned counsel is an untenable one and is discarded.
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 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.
10. No materials are available to establish that an Alco Meter test was conducted by the prosecution. In Mukesh's case (supra), a learned Single Judge of this Court had observed that in a case where the only material available was the smell of alcohol in the breath of the person at a time, when he was brought at the hospital and it is held that such smell need not always be due to the consumption of liquor. The Court held that when Alco Meter test is not conducted, the proper procedure must be analysis of blood sample of the person by a laboratory test. The dictum is extracted hereunder:-
“6............In a prosecution under Section 15C 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..........”
11. For want of result in an Alco Meter test or want of report of analysis of sample of blood of the person chargesheeted for the offence, in a laboratory, the prosecution case is only liable to fail. Apart from Annexure-A5, no materials are collected by the investigating officer to establish that the petitioners have consumed liquor in a public place. Even if the petitioners are sent for facing trial, the prosecution will not be able to establish the offence beyond reasonable doubt. The proposed trial would only be a futile exercise, time and money consuming.
In the result, the Crl.M.C stands allowed and all further proceedings as against the petitioners in S.T.No.1794 of 2019, pending on the files of Judicial First Class Magistrate Court-III, Punalur as originated from the final report filed in crime No.265 of 2019 of Kunnicode Police Station stands quashed forthwith.