Kerala HC: Only Smell of Alcohol not Enough for Prosecution

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1567

July 19, 2018

Case name: Mukesh M.K. v. State of Kerala & Anr.

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The High Court of Kerala in the case has opined that in case of offence of drinking at pubic place, 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.

In the instant case, the Petitioner had sought quashing the prosecution against him under Section 294(b) IPC and under Section 15(c) of the Kerala Abkari Act (the Act). Section 294(b) of the IPC punishes for uttering obscene words in public place and 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.

The petitioner in the case contended that there was absolutely no material for a prosecution against him for the aforesaid offences and that, if the prosecution proceeds on the available materials, it would be nothing, but an abuse of legal process.

The Petitioner also contended that a very small quantity of 50 ml of liquor contained in a bottle of 1 litre capacity was seized from him by the concerned Police Officer.

The High Court of Kerala in view of the facts and circumstances prevailing in the case quashed the charges against the Petitioner on the following grounds:

  • That 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.
  • That 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.
  • The High Court noted that though such provisions are not there in the Kerala Abkari 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 15(c) of the Act.
  • That in a case 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.
  • The Court noted that the aforesaid procedure was not followed in the present case and 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. Thus, there was no scientific material to show that alcohol was detected in the blood of the accused.
  • In view of the aforesaid circumstances, the High Court noted that as 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.
  • Hence, the High Court stated that there must be evidence to prove that the liquid seized by the Police or consumed by the accused was identified as liquor and when there is no material to prove that aspect, the prosecution will definitely be an abuse of legal process.