Kerala High Court: Oral evidence of officials regarding taste and odour of alcohol is not enough to prosecute for public consumption of alcohol.

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In a peculiar case involving public consumption of alcohol. The Kerala High Court ordered that where the only evidence that was presented before the court was the oral evidence of an official regarding the odour of alcohol without relying on an alco-meter test; the accused cannot be prosecuted.

FACTS OF THE CASE

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 about 9.50 p.m. on
2.7.2017, and when the Sub Inspector approached him, the petitioner scolded the Sub Inspector 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.

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 an 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.

HELD

The judgement given by Justice P. Ubaid relied on State of Kerala v. Sreedharan, Rajeev P and Ors. v. State of Kerala and Soman v. State of Kerala which laid down that it would not be safe to rely on the smell of alcohol alone to find that the liquid
involved is liquor within the meaning of Section 8 of the Prohibition Act.

It was further held that The Alco Meter Test gave a strange result of exorbitant reading, which was later admitted to being a wrong reading. Therefore, no value can be attached to the Alco Meter reading.

Justice Ubaid held that in a prosecution under Section 15(c) of the Motor Vehicles Act which could be used in the absence of a particular procedure as in the present case under the Kerala Abkari 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 to the hospital. Such smell need not always be due to the consumption of liquor. He said that 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.

He held that when there is no material to prove that aspect, the prosecution will definitely be an abuse of legal process.

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