IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.MC.No. 578 of 2011() ----------------------------- CC.248/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA CRIME NO.13/2010 OF KADAKKAL POLICE STATION .................... PETITIONER(S): ACCUSED-A2 ----------------------------------- ANULAL, AGED 27 YEARS, S/O.SASILAL, KODIVILA HOUSE, ARUPURAM MURI, KADAKKAL, KOTTARAKKARA, KOLLAM DISTRICT. BY ADVS. SRI.K.V.ANIL KUMAR SRI.AJITH MURALI RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHEMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.578 of 2011 --------------------------------------- Dated this 14th day of March, 2011 ORDER Petitioner is second accused in Crime No.13 of 2010 of Kadakkal Police Station and C.C.No.248 of 2010 of the Court of learned Judicial First Class Magistrate-II, Kottarakara for offence punishable under Sec.15(c) of the Abkari Act (for short, "the Act”). Prosecution case is that on 01.01.2010 at about 3.30p.m the Sub Inspector, Kadakkal and party while on patrol duty found petitioner and another engaged in consuming liquor on the veranda in front of a shop at Kadakkal junction. Annexure-B is the final report in the case. Learned counsel for petitioner has contended that the prosecution against petitioner cannot stand as the remnant of the liquid was not sent for chemical examination, there is no drunkenness certificate obtained from a Medical Officer and that no mahazar for scene of occurrence showing that place as a public place as coming under sec.15(c) of the Act is drawn up. 2. Learned Public Prosecutor has submitted that as per the instruction given, the sub Inspector had seen petitioner and another engaged in transferring the liquid from a bottle of 375 ml Crl.M.C.No.578 of 2011 -: 2 :- capacity which bore the label “Mc Dowel No.I Celebration” in a disposable glass and consuming it on the veranda in front of a shop at Kadakkal Junction. It is also submitted that the bottle, remnant (100ml) and two disposable plastic glasses were seized by the police and produced before Court. According to the learned Public Prosecutor the Sub Inspector has identified the liquid as liquor by tasting and smelling. 3. The main attack is the absence of chemical analysis on the remnant. So far as the said contention is concerned, this Court while disposing of Crl.M.C.Nos.466, 472 and 629 of 2011 has held that for the mere reason that there is no chemical analysis of the liquid, a prosecution under Sec.15(c) of the Act cannot be said to be maintainable and liable to be quashed invoking the power under Sec.482 of the Code of Criminal Procedure (for short, "the Code”). The question whether identification of the liquid as liquor made by the detecting officer by tasting and smelling is acceptable or not is to be decided by the trial court depending on various factors including his expertise, experience and other surrounding circumstances. In the light of that decision the contention that in the absence of chemical analysis or even drunkenness certificate proceeding are liable to be quashed cannot be accepted. Crl.M.C.No.578 of 2011 -: 3 :- 4. So far as the alleged absence of mahazar for scene of occurrence is concerned learned Public Prosecutor pointed out that the final report itself states that a mahazar was drawn up and produced along with the final report. In the final report it is stated that the incident occurred on the veranda of a shop at Kadakkal Junction. Whether, assuming that a mahazar for scene of occurrence is not available, the said statement in the final report and evidence of prosecution witnesses can be accepted and it could found that the offence allegedly occurred at a public place are all matters which the trial court has to decide. Request to quash proceeding under Sec.482 of the Code cannot be allowed. Resultantly this petition is dismissed without prejudice to the right of petitioner to take up appropriate defence in the trial court. (THOMAS P JOSEPH, JUDGE) Sbna/-