IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Crl.Rev.Pet.No. 1705 of 2009() ------------------------------ CRA.101/2007 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.404/2006 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... PETITIONERS/APPELLANTS/ACCUSED (1, 3 AND 4): -------------------------------------------------- 1.P. RAJEEV,S/O.PRABHAKARAN, CHENTHITTA PADEETTATHIL VEEDU, NADAKKAVU MURI, PERINGALA VILLAGE. 2. RAJEEV S/O. KUTTAPPAN, CHIRAVYUDVADAKKATHIL VEEDU, ERUVA PADINJAREMURI, PATHIYOOR VILLAGE. 3. UNNI,S/O. ANANDANKUTTY,CHIRAYIL VEEDU, ERUVAKIZHAKKUMMURI, PATHIYOOR VILLAGE. BY ADV. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KAYAMKULAM. 2. THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR: C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1705 of 2009 --------------------------------------- Dated this 28th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge-1, Mavelikara in Criminal Appeal No.101 of 2007 confirming conviction and sentence of petitioners in C.C.No.404 of 2006 of the court of learned Judicial First Class Magistrate, Kayamkulam for offence punishable under section 15(c) of the Abkari Act (for short, “the Act”). According to the prosecution on 19-03-2006 at about 8 p.m petitioners were seen by PW3, Assistant Sub Inspector as engaged in consuming liquor on the public road in front of Sindhu Hotel. Learned magistrate found that petitioners committed offence as alleged, convicted and sentenced them to undergo simple imprisonment for six months each and to pay fine of Rs.5000/- each. Appellate court has confirmed the conviction and sentence. It is contended by learned counsel that conviction of petitioners is not legal or proper. 2. PWs.2 and 3 are official witnesses. PW2 is a constable and PW3, Sub Inspector who is said to have dictated the offence. They stated that on 19-03-2006 at about 8 p.m when they came near Sindhu Hotel they found petitioners engaged in consuming liquor on the public road. PW3 by smelling and tasting identified the liquid as liquor and Crl.R.P.No.1705 of 2009 2 arrested petitioners. The bottles containing liquor were seized as per Ext.P5. Case was registered against the petitioners. PW1 is the medical officer who examined petitioners on 19-03-2006 at about 9 p.m and issued Exts.P1 to P4. Evidence of PW1 and Exts.P1 to P4 is that petitioners had consumed alcohol but were not under its influence. In cross examination she stated that she identified alcohol from the breath of the petitioners. To the question whether consumption of ayurvedic medicines could produce smell (similar to) alcohol witness stated petitioners had not told her accordingly. In otherwords PW1 has not ruled out the possibility of consumption of ayurvedic medicine producing smell of alcohol. PW3 stated that since the liquor was in small quantity the same was not send for chemical examination. What therefore is available is only the evidence of PWs.2 and 3 that PW3 identified the liquid in the bottles as liquor by smelling and tasting it. Question is whether that is sufficient to hold that the liquid was liquor. learned counsel has placed reliance on decisions of this court in State of Kerala V. Sreedharan (1965 KLT 1002), Francis V. State of Kerala (1965 KLT 1034), Muthan Ankamuthu V. State of Kerala (1970 KLT 427) and State of Andhra Pradesh V. Madiga Boosenna (AIR 1967 SC 1550). These decisions are to the effect that in cases of this nature, a report of chemical examination is essential and that evidence of dictating officer that he identified the contraband as liquor Crl.R.P.No.1705 of 2009 3 by smelling and tasting is not by itself sufficient to warrant conviction. 3. It is true that PW3 stated that the quantity of the contraband are small and that is why the same was not send for chemical examination. Rule 8(2(a)) of the Kerala Abkari Shops and Disposals Rules 2002 prescribes the quantity of sample to be taken for analysis to be not less than 180ml and in the case of toddy it is 500ml. In this case, Ext.P5 as well as the evidence of PW3 show that in the bottle having capacity of 375ml there was 200ml of the liquid. That was sufficient for chemical examination. Hence PW3 cannot contend that the quantity was not sufficient for chemical examination. 4. From the evidence of PW1 it is not possible to conclude that what was consumed by petitioners at the relevant time and place is liquor since as per the evidence of PW1 petitioners were not under the influence of alcohol and possibility of petitioners taking alcohol from elsewhere even prior to the detection of the offence cannot be ruled out. Also in the light of evidence given by PW1, smell of alcohol being on account of consumption of ayurvedic medicines cannot be ruled out. In the circumstances I am inclined to agree with the contention of learned counsel for petitioners that prosecution could not prove its case beyond reasonable doubt. Petitioners are entitled to an acquittal. Resultantly this revision petition is allowed. Conviction and Crl.R.P.No.1705 of 2009 4 sentence of petitioners are set aside and they are acquitted of the charges found against them. THOMAS P JOSEPH, JUDGE Sbna/