IMPORTANT POINT
Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence.

ORDER

Sophy Thomas, J.—The petitioner is the sole accused in Crime No.112 of 2013 of Badiadka Police Station registered for an offence punishable under Section 118(a) of the Kerala Police Act (for short ‘the KP Act’).

2. The allegation is that on 26.02.2013, when the petitioner was called to the Police Station for the purpose of identifying an accused, he was under the influence of alcohol. Badiadka Police registered crime against him and he was charge sheeted under Section 118(a) of the KP Act. Now it is pending before JFCM-II, Kasaragod as C.C.No.422 of 2017.

3. Learned counsel for the petitioner would submit that petitioner is a Village Assistant and he was called to the Police Station at 07.00 p.m., in order to identify an accused, against whom a case was registered under Section 353 of IPC and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act (for short ‘the Sand Act’). Since that accused was a stranger to him, he could not identify him, and only because of that fact, Police registered this crime against the petitioner. So his prayer is to quash Annexure-A3 charge sheet.

4. In order to attract an offence punishable under Section 118(a) of the KP Act, a person should be found in a public place in an intoxicated manner or rioting condition incapable of looking after himself. The definite case of the prosecution is that as requested by Police the petitioner reached Badiadka Police Station for the purpose of identifying an accused. The very fact that the petitioner reached the Police Station, when he was asked to be present there, itself will negative the case of the prosecution that he was incapable of looking after himself even if it is taken for argument sake that he had consumed alcohol at that time. Admittedly the petitioner is a Village Assistant and he was invited to the Police Station for identifying an accused. Annexure-A1 will not show that the petitioner committed rioting or misbehaved himself in the Police Station. The only allegation in the F.I.R was that he was intoxicated and was unable to control himself. The 161 statements of the witnesses are to the effect that the petitioner challenged the Police and committed rioting inside the Police Station. The available records will not show that the petitioner was sent to doctor for a clinical examination, or to show that his blood test was conducted to prove that he was intoxicated. The records show that he was subjected to Alco-quant test using Alcometer. All the witnesses are Police Officers except CW7 Saseendran, who was the accused arrested under the Sand Act, to identify whom the petitioner was called to the Police Station.

5. Section 118 (a) of KP Act, reads as follows:

“118. Penalty for causing grave violation of public order or danger:- Any person who.-(a) “is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself——”

6. The word ‘intoxicated’ is not defined under the Act. The meaning of the word ‘intoxicated’ as given in Advanced Law lexicon by P.Ramanatha Aiyar is that “a man is intoxicated whenever he is so much under the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect.

7. Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence. Mere smell of alcohol also cannot be construed to mean that the person was intoxicated or was under the influence of any liquor. A diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption; drunkenness, will come under the definition of intoxication as per Blacks Law dictionary.

8. The expression ‘rioting condition’ used in Section 118 (a) would mean that the person was behaving in a way that is violent and/or not in control