The determination of disorderly behavior induced by drink is a question of fact and should be based on the relevant evidentiary concerns outlined in the Act, rather than being strait-jacketed to urine or blood tests alone.

CHETTUR SANKARAN NAIR, J.

Correctness of the order of acquittal in Criminal Appeal No. 81/88 on the file of the Court of Session Kottayam Division, and correctness of the decision in Verghese v. State of Kerala (1990) 2 KLT 416, relying on which, acquittal was made arise for consideration. In calendar review, a Criminal P.C. was registered against the order of acquittal. The matter than came up before Rajasekharan J. The learned Judge doubted the correctness of the reported decision, and referred the matter to a Division Bench. Thus, it comes before us.

2. Appellant before the Court of Session (called the accused hereinafter), was convicted of the offence under S. 51(a) of the Kerala Police Act, by the trial Magistrate finding that he behaved in a disorderly manner under the influence of 'drink' in the office of PW 3 - Municipal Commissioner, at or about 3.30 p.m. on 19-9-1987. PW 3 made a report to PW 4 - Sub-Inspector of Police, who in turn deputed PW 2 to the Municipal Office. PW 2 arrested the accused and produced him for medical examination before PW 1 Doctor, who issued Ext. P1 certificate. The Magistrate convicted the accused, relying largely on Ext. P1 certificate.

3. The Sessions Judge relying on the decision in Varghese v. State of Kerala (1990) 2 KLT 416 acquitted the accused. The decision states :

"The Supreme Court held that it cannot be said to be conclusively proved that a person has consumed alcohol, "unless" urine or blood test was carried out, and mere smelling of alcohol, unsteady gait, dilation of pupils, incoherence is speech are not enough to come to any such conclusion.

For a fact, this statement is incorrect. The Supreme Court did not hold that drunkenness cannot be proved, "unless" urine or blood test was made. The accused in that case was not charged with the offence of drunkenness either, and the court had no occasion to consider the elements necessary to establish a charge of drunkenness. The conviction was under S. 304(A) IPC, and Special Leave was limited only to question of sentence, as the first sentence in the judgment shows. It was argued before the Supreme Court that a severe sentence was imposed by the trial Court on assumption that the accused drove a motor vehicle in a state of intoxication. The reasons the persuaded the trial court to that view, were that the accused was of unsteady gait, and smelt of alcohol. Unsteady gait is often caused by nervousness, and smell by itself is not conclusive of drunkenness. That is all that the Supreme Court observed.

4. Whether there was disorderly behaviour induced by drink, is a question of fact, and this has to be determined on the basis of the facts of each case. Section 3 of the Evidence Act illustrates how a fact is proved. There is no justification for strait-jacketting proof, as urine and blood test alone, for purposes of S. 51(a) of the Kerala Police Act. That would be reading into the Section an additional or absolute requirement, not though of by the legislature. Incidentally, the Act itself indicates relevant evidentiary concerns. In exercise of the power under S. 69 of the Act, a form of certificate is prescribed, enumerating relevant evidentiary facts. They are :

"general behaviour, state of clothing, character of speech (thick, slurred, etc), self-control, memory, character of handwriting, pulse, temperature, state of skin, mouth and teeth; smell, appearance of eyes, pupils, gait, muscular co-ordination, etc."

5. Counsel for accused argued that drunkenness cannot be ascertained from smell. He referred us to observations in Forensic Medicine by Keith, Simpson, and Barnard Knight (9th Edition, Page 328). The authors state that no simple test is available to ascertain the degree of loss of self-control. But, relevant tests indicated by the Authors are,

"state of clothing, general behaviour, appearance of conjunctive, state of tongue, smell of breath, character of speech, and manner of walking."

All these, and additional tests are