Smell of alcohol on a person need not always be due to consumption of liquor

Kerala High Court: A Single Judge Bench of P. Ubaid, J., allowed the criminal miscellaneous case and quashed the prosecution under Section 294(b) of IPC and Section 15(c) of the Kerala Akbari Act (1 of 1077).

The petitioner was found on the road side consuming alcohol, and on being apprehended by the police, went on to castigate the officer by using distasteful language. He was subjected to an alco-meter test, and was taken to the Taluk Head Quarters Hospital for medical examination, where a certificate of drunkenness was issued. Howbeit, no record of the abuse or offensive language used by the petitioner was made. Furthermore, the police found 50 ml of liquor in a 1 litre bottle on the petitioner, which was not subjected to any chemical analysis. The alco-meter test gave a strange result, which the police accepted to be a mechanical defect in the device. After declaring the charge under Section 294(b) of IPC to be baseless, the Court relied on State of Kerala v. Sreedharan [1965 KHC 267] and Rajeev P. v. State of Kerala [2009 KHC 979] to state that mere smell of alcohol is not enough to prosecute a person under Section 15(c) of the Kerala Akbari Act, and in cases where a substantial amount of alcohol is involved, the liquid should be identified as liquor through chemical analysis.

The Court also distinguished the present case from the case of Soman v. State of Kerala [2011 SCC OnLine Ker 3944] which laid down that merely because chemical analysis was not undertaken could not be a valid reason to declare the prosecution unmaintainable. In the aforementioned case, there was a positive result on the alco-meter test and the liquid was identified as liquor through ‘taste and odour’ whereas in the present case, there was an absurd alco-meter finding to which no value could be attached.

Similar to cases under the Motor Vehicles Act, Section 15(c) of the Kerala Akbari Act can also allow for blood alcohol level testing in cases where there are no alco-meter test results. However, no test to determine the amount of alcohol in the blood of petitioner was conducted, and the issued certificate was on the basis of smell of alcohol on the petitioner. To prosecute, there must be proof of consumption of liquor at a public place, and the liquid must be identified as liquor, both of which were not satisfied in the present case. Accordingly the prosecution was quashed, stating it to be a sheer waste of time and an abuse of the legal process. [Mukesh M.K. v. State of Kerala, 2018 SCC OnLine Ker 2737, order dated 11.07.2018]


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