Point of Law: Section 15C of Kerala Abkari Act Consumption of liquor in public places - No person shall consume liquor in any public place unless consumption of liquor in any such place is permitted under a licence granted by Commissioner.

ORDER :

1. This is a petition, filed under Section 482 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter) and the prayer herein is to quash the First Information Report and incidental proceedings in Crime No. 505/2022 of Kuttippuram Police Station.

2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor.

3. The learned counsel for the petitioners would urge that the proceedings, based on Annexure A1 First Information Report, are erroneous and the final report filed thereof also is unsustainable.

4. According to the learned counsel for the petitioners, in order to attract an offence punishable under Section 15C of the Kerala Abkari Act (for short ‘the Act’ hereinafter) the prosecution shall prove presence of alchocol by Alcho Meter test or through report of analysis of sample of blood of the accused. In this connection, the learned counsel placed decision of this Court reported in Rajendran Pillai vs. State, 2020 (1) KLJ 399. In paragraph 11 of the Judgment, this Court held as under:

“11. For want of result in an Alco Meter test or want of report of analysis of sample of blood of the person charge-sheeted for the offence, in a laboratory, the prosecution case is only liable to fail. Apart from Annexure-A5, no materials are collected by the investigating officer to establish that the petitioners have consumed liquor in a public place. Even if the petitioners are sent for facing trial, the prosecution will not be able to establish the offence beyond reasonable doubt. The proposed trial would only be a futile exercise, time and money consuming.”

5. In the decision reported in Mukesh vs. State of Kerala, 2018 (3) KLT 386 : 2018 (3) KLJ 776, this Court affirmed the said view.

6. In this connection, it is relevant to refer Section 15C of the Kerala Abkari Act. The same is as under:

15C. Consumption of liquor in public places - No person shall consume liquor in any public place unless consumption of liquor in any such place is permitted under a licence granted by the Commissioner.

Explanation I - For the purpose of this section “public place” means any street, Court, Police Station or other public office or any club or any place of public amusement or resort or on board any passenger boat or vessel or any public passenger or goods vehicle, or a dining or refreshment room in a restaurant, hotel, rest house, travellers' bungalow or tourists' bungalow where different individuals or groups of persons consume food, but shall not include any private residential room.

Explanation II - For the purpose of Explanation I “public passenger or goods vehicle” means a vehicle used for carrying passengers or goods for hire or reward, with or without a contract, express or implied, for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and includes a private vehicle in any public place.

7. The relevant question is; what is the mode of proof when the prosecution alleges consumption of liquor by a person in a public place? In order to attract an offence under Section 15C of the Kerala Abkari Act, it is essential to prove that the accused consumed liquor in a public place. Whether ‘smell of alcohol present in breath’ recorded in the medical certificate is the conclusive evidence to prove an offence under Section 15C of the Act? No doubt ‘smell of alcohol present in breath’ is not conclusive to hold that a person consumed alcohol, since persons who consumed medicines with alcohol base and Homoeopathic medicines also would respond positive to breath test. Therefore, the conclusive test to prove that a person consumed alcohol or not, is the Alco Meter test or blood analysis test.

8. In this matter, as per Annexure A2, the prosecution would allege that the petitioners herein were subjected to medical examination before the Government Taluk Hospital, Kuttippuram. But, the records do not suggest either Alco Meter test or blood sample analysis test was conducted to conclusively prove that the pet