The main legal point established is that mere alcohol consumption and driving a vehicle is not enough to establish culpability under the relevant sections. Evidence of incapacitation or reckless endangerment of human life is essential to sustain the charges.

S. S. SATHEESACHANDRAN, J.

1. Petitioner is the accused in Crime No.827/2011 of Aranmula Police Station. On the basis of Annexure A3 report filed by the Sub Inspector of Police, Aranmula Police Station, petitioner now stands indicted of the offences punishable under Section 279 of the Indian Penal Code, 185 of the Motor Vehicles Act and Section 118(e) of the Kerala Police Act. The gist of the accusation is that he was seen riding a motor bike after having consumed alcohol. His medical examination disclosed that he had consumed alcohol. A crime was registered and, later, it has led to his indictment under the report as referred to.

2. Learned counsel for the petitioner adverting to Annexure A1 F.I.R, Annexure A2 drunkenness certificate issued by the doctor and Annexure A3 final report, submits that none of the offences imputed against him would lie on the facts and circumstances, and materials produced.

3. Perusing the materials produced, Annexure A1 to A3, it is seen that the petitioner/accused was proceeded against for the various offences imputed against him since he had driven a motor bike after having consumed alcohol. Annexure A2 drunkenness certificate does not disclose that at the time of his examination he was in a drunken condition incapable of taking care of himself, but only that he had consumed alcohol. Adverting to Section 185(a) of the Motor Vehicles Act, learned counsel for the petitioner has contended that an analysis test by a breath analyzer and the report thereof that too indicating that the content of alcohol in his blood was above what is fixed, is essential in a case of this nature to prosecute him for the offence. Irrespective of the question whether there was test by a breath analyzer or not, mere imputation that the petitioner has driven the vehicle in a drunken condition, that by itself is not sufficient to indict him for such offence. Alcohol content in the blood need not be by consumption of alcohol alone, it could be on account of administration of medicines which has alcoholic content. So much so, the drunkenness certificate issued by the doctor should at least indicate his incapacitation to drive or ride a vehicle, even if there had been no test by way of a breath analyzer showing the alcoholic content as fixed, to prosecute him for the said offence. Annexure A2 certificate does not show that at the time of his examination by the doctor he was incapacitated from taking care of himself owing to consumption of alcohol. It is also seen from the certificate that he was examined by the doctor at 7.30 p.m. Interception of his vehicle and arrest is also shown to be almost about the same time, in fact, it is stated as 7.30 p.m. in the F.I.R. and other records. That indicates he was immediately taken to the doctor after his vehicle was intercepted and at that point of time other than that he had consumed alcohol, there was nothing to indicate that he was under the control of alcohol or incapacitated from taking care of himself. When that be so, his implication for the offence under Section 185 of the Motor Vehicles Act cannot be sustained.

4. So far as the offence under Section 118(e) of the Kerala Police Act, which provides for a punishment for a term upto three years, the question to be considered is whether in the given facts of the case such an offence could be imputed against him. A specific penal provision has been made under Section 185 making a person culpable for driving or riding a motor vehicle in a drunken condition. That section also stipulates of the minimum alcoholic content in his blood, to fix such culpability on him to show that he had driven the vehicle in a drunken condition. When that be so, is it possible to hold that the offence under Section 118(e) of the Kerala Police Act could be imputed against such a person for having ridden a motor bike after having consumed alcohol. What has been provided under Section 118 of the Kerala Police Act is a penalty for causing grave violatio