IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 Crl.MC.No. 749 of 2011() ----------------------------- CC.2311/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA CRIME NO.806/2009 KADAKKAL POLICE STATION .................... PETITIONER(S): ACCUSED ------------------------------- 1. YADUKRISHNAN, S/O.SASANKAN, AGED 22 YEARS, VEENA BHAVAN, PANGALUKADU MURI, KUMMIL, KADAKKAL, KOTTARAKARA. 2. VARUN, S/O.REMESHAN, AGED 26 YEARS, REMYA BHAVAN, PANGALUKADU MURI, KUMMIL, KADAKKAL, KOTTARAKARA. BY ADV. SRI.ALEXANDER GEORGE RESPONDENT(S): COMPLAINANT --------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KADAKKAL POLICE STATION, KOLLAM DISTRICT. BY PUBLIC PROSECUTOR SRI.K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.749 of 2011 -------------------------------------- Dated this the 1st day of April, 2011. ORDER Petitioners are accused in Crime No.806 of 2009 of Kadakkal Police Station and C.C.No.2311 of 2009 of the court of learned Judicial First Class Magistrate-II, Kottarakkara for offence punishable under Section 15C of the Abkari Act (for short, “the Act”). Case is that on 14.10.2009 at about 7.45 p.m. first petitioner was seen transferring liquor to the second petitioner in a dispossible glass and the latter consuming it at a public place. Petitioners seek to quash proceeding against them on the ground that mere pouring of liquor to a dispossible glass would not amount to offence under Section 15C of the Act, there is no independent witnesses cited to prove the alleged incident, no medical or chemical examination is conducted, no breath analysis is conducted and that the seized articles are not produced before the learned Magistrate. Learned counsel has placed reliance on the decisions in Dinesan v. State of Kerala (2009 (3) KLT 471) and Rajeev P. and others v. State of Kerala and another (2009 (2) KLD 656). 2. Learned Public Prosecutor submitted on getting instruction that all the seized articles are produced in the court concerned and that petitioners were subjected to medical examination. It is pointed out by the learned Public Crl.MC No.749/2011 2 Prosecutor that the decision of this Court in Rajeev P. and others v. State of Kerala and another (referred supra) was distinguished and explained in the decision in Crl.M.C.No.466 of 2011 and connected cases. 3. Dinesan v. State of Kerala (referred supra) relied on by the learned counsel relates to mere pouring of liquor to a glass. It was held that the said act alone would not amount an offence under Section 15C of the Act. Allegation in the final report in the present case is not merely pouring of liquor but consuming as well. It is alleged that first petitioner poured (allegedly) liquor into a dispossible glass and that was consumed by the second petitioner. Hence at this stage I am unable to say, relying on upon the decision in Dinesan v. State of Kerala that no offence is made out. 4. So far the contention that no medical/chemical examination was conducted and no breath analyzing was conducted is concerned, learned Public Prosecutor contended that medical examination was conducted. Question whether identification of the liquid as liquor by the Detecting Officer based on tasting and smelling could be accepted or not is a matter which the trial court has to decide on the evidence on record including the experience and expertise of the Detecting Officer to identify liquor by tasting and smelling and the and surrounding circumstances. This Court in Crl.M.C.No.466 of 2011 and connected cases distinguished the decision in Rajeev P. and others v. Crl.MC No.749/2011 3 State of Kerala and another. In the latter decision challenge was to conviction and sentence of accused for offence punishable under Section 15C of the Act and this Court held that evidence of prosecution was insufficient to warrant a conviction. Coupled with that, absence of chemical examination of the liquid was also taken as a ground to unsettle the conviction. In the light of the decision in Crl.M.C. No.466 of 2011 and connected cases question whether identification of the liquid as liquor is acceptable or not is a matter which the trial court has to decide having regard to the evidence on record. Request to quash the proceedings cannot be allowed. 5. I make it clear that I have not expressed any opinion on the merit of the prosecution case and contentions raised by petitioners. Leaving open the right of petitioners to raise all their contentions before the trial court this Criminal Miscellaneous Case is dismissed. THOMAS P.JOSEPH, Judge. cks