The absence of conclusive proof, such as Alco Meter or blood tests, negates charges under S.15C of the Kerala Abkari Act.

1. This Criminal Miscellaneous Case is filed under S.482 of the Code of Criminal Procedure , 1973 ("the Code" for the sake of brevity).

2. Petitioners are accused Nos.1 and 2 in S.T.No.2411 of 2023 on the file of the Judicial First Class Magistrate Court - I, Thodupuzha. The above case is charge - sheeted alleging offences punishable under S.15 C of the Kerala Abkari Act .

3. The prosecution case is that, on 19.06.2023 at about 7.20 p.m. the Police found petitioners engaged in consuming liquor in a Scorpio car parked on the side of the road and hence they committed offences under S.15C of the Kerala Abkari Act . Annexure - A1 is the final report. It is the case of the petitioners that to attract an offence under S.15C of the Abkari Act, the prosecution had to prove the presence of alcohol by Alcho Meter test or through report of analysis of sample of blood of the accused. According to the petitioners, S.15C of the Act penalise consumption of liquor at public place unless consumption of liquor at such place is permitted under a license granted by the authority concerned. It is the case of the petitioners that in order to substantiate the allegation under S.15C of the Act, the prosecution has to primarily establish that the persons alleged have consumed alcohol in public place. According to the petitioners, the smell of alcohol need not be as a result of consuming alcohol in public place. In this case, no such test is conducted. Hence, it is submitted that in the light of Annexure A2 judgment, prosecution against the petitioners are unsustainable.

4. Heard counsel for the petitioners and the Public Prosecutor.

5. Admittedly, there is no test conducted in this case to prove that the petitioners consumed alcohol. No analysis of sample of blood of the accused was taken. In such circumstances, whether the offence under S.15C of the Abkari Act is attracted in the case is the question. This point is considered by this Court in detail in Annexure A2 judgment. It will be better to extract the relevant portion of the above judgment here:

"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 S.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 S.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 petitioners herein consumed alcohol. Therefore, the entire prosecution found to be without materials to prove an offence under S.15C of the Act.

Therefore, the petition is allowed. All proceedings arising out of Crime No.505/2022 of Kuttippuram Police Station, stand quashed."

6. In the light of the above dictum, I am of the considered opinion that continuation of the case against the petitioners is unsustainable. The same principle is applicable in the present case also. No Alcho meter test or through report of analysis of sample of blood of the accused is conducted to prove that t