IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 Crl.MC.No. 466 of 2011() ------------------------ ST.2824/2010 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... PETITIONER(S): ACCUSED: ----------------------------------------- SOMAN, S/O.MADHAVAN, AGED 37 YEARS,MUNDAKKAL HOUSE,PUNNAKKAL, MUNDAKKAL LINE, ELAMAKKARA PO, ERNAKULAM. BY ADV. SRI.S.R.SREEJITH RESPONDENT(S): COMPLAINANT: ----------------------------------------------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, THOPPUMPADY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/03/2011 ALONG WITH CRMC NO. 472 OF 2011 AND CRMC. NO.629 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss 'CR' THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.466, 472 and 629 of 2011 --------------------------------------- Dated this 07th day of March, 2011 COMMON ORDER Since common question is involved these cases are disposed of by a common order. 2. In all these cases the question raised for a decision is whether if the detecting officer has not taken steps to send the liquid seized for chemical analysis, prosecution for offence punishable under Sec.15C of the Abkari Act (for short, "the Act”) is liable to be quashed. 3. Short facts necessary for consideration of the above question are: Crl.M.C.No.466 of 2011 arises from the final report submitted by the Thoppumpady police in S.T.No.2824 of 2010 of the Court of learned Judicial First Class Magistrate-II, Kochi. Case is that on 20.04.2010 at about 5 p.m the Sub Inspector, Thoppumpady found petitioner consuming liquor at a public place. The detecting officer is said to have seized from the petitioner about 20ml of the liquid (allegedly IMFL) contained in a bottle of 500ml capacity and a 100ml capacity disposable glass. It is also stated Crl.M.C.Nos.466, 472 and 629 of 2011 -: 2 :- that the bottle contained the label “All Gold US OP Brandy”. The detecting officer is said to have identified the liquid as liquor by smelling and tasting and also by Alcoquant test which revealed that there was 249mg of liquor per 100ml of blood. Crl.M.C.No.472 of 2011 arises from Crime No.637 of 2010 of Thoppumpady Police Station and proceeding in S.T.No.2825 of 2010 of the Court of learned Judicial First Class Magistrate-II, Kochi. The alleged detection was on 20.04.2010 at about 5.45 p.m. It is alleged that petitioner was found consuming liquor at a public place. The detecting officer is said to have seized from the petitioner 50ml of IMFL contained in a 375ml capacity bottle which had the label “3 Roses US OP Brand” and a disposable glass of 100ml capacity. The liquid was allegedly identified as liquor by smelling and tasting. Alcoquant test was conducted which revealed that there was 251mg of liquor per 100ml of blood. Crl.M.C.No.629 of 2011 arises from the final report in Crime No.1144 of 2010 of Harbour Police Station. Final report was submitted before learned Judicial First Class Magistrate-I, Kochi who took cognizance of the offence and filed C.C.No.2921 of 2010. Allegation is that petitioners were found consuming liquor at a public place on 06.09.2010 at about 8.30p.m. The detecting officer is said to have seized from the petitioners an empty bottle of 750ml capacity with label “MC No.1 McDowel Crl.M.C.Nos.466, 472 and 629 of 2011 -: 3 :- Brandy” with 10ml of brandy in it and two disposable glasses. The detecting officer is said to have identified the liquid as liquor from the smell of breath of petitioners. Alcoquant test was also conducted which revealed that there was above 100mg of liquor per 100ml of blood of petitioners. In all the above cases, petitioner/petitioners are charged for offence punishable under Sec.15C of the Act. 4. It is contended by learned counsel for petitioners that since the liquid allegedly seized were not sent for chemical analysis, identification of the liquid as liquor by smelling and tasting or even by Alcoquant test is not sufficient to prosecute petitioners. According to the learned counsel the best form of evidence that prosecution could adduce is by chemical analysis of the liquid and in the absence of that, the prosecution can only fail. My attention is drawn to Rule 8 of Abkari Shops Disposals Rules (for short, "the Rules”) which according to the learned counsel prescribed the manner of collection of sample of liquor for chemical analysis. Reliance is also placed on the decision in Rajeev.P Vs. State of Kerala (2009(2) KLD 656). 5. Learned Public Prosecutor contended that the decision referred above cannot apply to the facts of the case. It is pointed out that the decision of the Supreme Court in Sri Chand Crl.M.C.Nos.466, 472 and 629 of 2011 -: 4 :- Batra Vs. State of U.P (AIR 1974 SC 639) has not been adverted to in the said decision. It is argued that Rule 8 of the Rules concerns collection of sample of toddy/liquor from toddy shops/liquor shops. According to the learned Public Prosecutor, whether identification of the liquid seized as liquor could be accepted or not, is a matter to be decided by the trial court. 6. I shall refer to the decisions relied on at the bar by learned counsel and the learned Public Prosecutor. Rajeev.P Vs. State of Kerala (supra) was a case where charge was under Sec.15C of the Act. There the liquid was not subjected to chemical examination and placing reliance on the decisions in Francis Vs. State of Kerala (1965 KLT 1034), Muthan Ankamuthu Vs. State of Kerala (1970 KLT 427) and State of Andhra Pradesh Vs. Madiga Boosenna and Ors. (AIR 1967 SC 1550) it was held that evidence of the Excise official that the liquid was identified as liquor by tasting and smelling (alone) was not sufficient to sustain the conviction. 7. Sec.15C of the Act penalises consumption of liquor at public place unless consumption of liquor at such place is permitted under a license granted by the authority concerned. To prove the said offence, the prosecution has to show that the person concerned consumed liquor at a public place. According Crl.M.C.Nos.466, 472 and 629 of 2011 -: 5 :- to the prosecution, in these cases consumption was at public places. It is for the trial court to decide whether the said places are public places or not and hence I am not going into that question in these proceedings. 8. Then the question is whether petitioners allegedly consumed 'liquor' at the said places. 'Liquor' is defined in Sec.3 (10) of the Act as “including spirits of wine (arrack), spirits, wine, toddy, beer and all liquid consisting of or containing alcohol“ 9. True, prosecution is obliged to prove that what was consumed by the petitioner (at the public place) was 'liquor'. It is in the above circumstances that it is argued by learned counsel for petitioners that chemical analysis of the liquid is essential and merely based on the alleged smelling or tasting of the liquid by the detecting officer or even by Alcoquant test no inference is possible that the liquid was liquor. 10. In Francis Vs. State of Kerala (supra) it was a case of seizure of ganja. The contraband was not subjected to chemical analysis. The witnesses examined by the prosecution were of the opinion that the contraband seized was ganja. Though the witnesses (official witness) claimed to be familiar with ganja there was significant contradiction between their opinions since PW2 would think that ganja is like leaves while PW1 was sure that ganja was never seen as leaves. Thus, there Crl.M.C.Nos.466, 472 and 629 of 2011 -: 6 :- was contradiction in the evidence of PWs.1 and 2 as to their familiarity with ganja. It was held that the Court should insist on the principle that best evidence should be produced to prove a fact. In the said case identification of the contraband by the official witness was only by smelling and no other test whatsoever was conducted. It was held that it was not safe to rely on the evidence of the official witnesses regarding smelling alone to find that the contraband was ganja. 11. Yet another decision relied on in Rajeev.P Vs. State of Kerala is Muthan Ankamuthu Vs. State of Kerala (supra) . There, it was held in paragraph 4 that there was only the evidence of PWs.1 and 4, official witnesses as to identification of the contraband by tasting and smelling. The Court held that evidence of the said witnesses that they identified the liquid by smell or otherwise to conclude that the liquid contained alcohol cannot be accepted on the facts of the case. It was held that in the absence of best evidence oral testimony of the official witnesses alone could not be accepted to sustain the conviction. The Court pointed out that the prosecutor will give evidence in his own way to secure a conviction and in that case an ordinary citizen will not get justice. The last decision relied on in Rajeev.P Vs. State of Kerala is State of Andhra Pradesh Vs. Crl.M.C.Nos.466, 472 and 629 of 2011 -: 7 :- Madiga Boosenna and Ors. (supra). A reading of paragraph 10 of that decision would show that except a general statement contained in the evidence of the witnesses, particularly PWs.1 and 4 that there was strong smell of alcohol emanating from the tins which were pierced open, there was no satisfactory evidence to establish that the article was liquor. It was pointed out that better proof by technical persons who considered the matter from a scientific point of view was necessary. It was held that merely trusting to the smelling sense of the Prohibition Officers and basing a conviction on an opinion expressed by those officers under the peculiar circumstances of the case cannot justify conviction of the accused. It was on the particular facts and circumstances of the case that the accused were acquitted for the reason that the best form of evidence was not available. In Rajeev.P Vs. State of Kerala (supra), 200ml of liquid was seized. Evidence was that the official witnesses identified the liquid as liquor by smelling and tasting. The Medical Officer who examined the accused stated that the accused had consumed alcohol but were not under its influence. She identified presence of alcohol from the breath of the accused. To a question whether consumption of ayurvedic medicine could produce smell of alcohol, she answered that the accused had not said so. This Court observed that the medical officer did not rule out the Crl.M.C.Nos.466, 472 and 629 of 2011 -: 8 :- possibility of accused consuming ayurvedic medicine containing alcohol and thus their breath having the smell of alcohol. Evidence of the official witnesses in the circumstances was held to be not sufficient to sustain conviction as the best form of evidence was not available. 12. Behram Khurshid Pesikaka Vs. State of Bombay (AIR 1955 SC 123) was a case of identification of the contraband by smelling alone. It was held that it was not safe to place reliance on the smelling of the contraband by the officers concerned alone to find that the liquid is liquor. 13. Learned Public Prosecutor has placed reliance on the decision in State of Kerala Vs. Narayanan (1962 KLT 31) where the accused was charged for the offences punishable under Sec.51(a) and 54 of the Abkari Act, 1073 (Travancore). It was held that there was no provision to send the liquor to the chemical examiner as per the said Act and that Excise officers could be considered as experts on the question whether a certain liquid is illicit liquor or not but before their opinion is accepted the Court should ascertain the grounds on which the opinion is so based as to test it. 14. Another decision relied by the learned Public Prosecutor is Sri Chand Batra Vs. State of U.P (supra). Crl.M.C.Nos.466, 472 and 629 of 2011 -: 9 :- There, reference was made to the decision in State of Andhra Pradesh Vs. Madiga Boosenna and Ors. (supra) relied on in Rajeev.P Vs. State of Kerala (supra). In that case the raiding party found in a room preparation of something with the aid of certain materials. Certain articles were seized from the said room. Question arose whether smelling and tasting employed by the Excise officer together with other circumstances proved in the case was sufficient to warrant a conclusion that the liquid seized was liquor. In paragraph 7 the Supreme Court observed referring to the decision in State of Andhra Pradesh Vs. Madiga Boosenna and Ors. that the Excise Inspector in the case who had the required technical knowledge and training behind him, had tested contents of the drums with the aid of litmus paper, hydrometer and thermometer and not confined himself to smelling alone for the purpose of identification. A reading of paragraph 8 of the decision would show that the High Court had accepted the view of the Sessions Judge having regard to the surrounding circumstances proved in the case that evidence of the Excise Officer could be accepted. Those findings were challenged in the Supreme Court. In paragraph 11 the Supreme Court held: “we think that it is not desirable to lay down an inflexible rule on questions of fact even though Crl.M.C.Nos.466, 472 and 629 of 2011 -: 10 :- their determination requires the adoption of scientific methods and tests. It is really for the Court of fact to decide whether, upon a consideration of the totality of fact in a case, it has been satisfactorily established that the objects recovered from the possession of the accused included liquor of prohibited strength”. On the facts of the case the Supreme Court held that neither the decision in State of Andhra Pradesh Vs. Madiga Boosenna and Ors. (supra) nor any other case would help the accused to ward off the conviction and sentence on him. 15. Going by the said decision of the Supreme Court there could be no abstract rule on the question of fact whether evidence of the detecting officer as to identity of the contraband can be accepted or not and that question of fact is a matter to be determined by the trial court having regard to the evidence adduced including the surrounding circumstances of the case. 16. Learned counsel for petitioners have invited my attention to Rule 8 of the Rules referred to above. According to the learned counsel, in view of the said Rule it was incumbent on the detecting officer to sent the sample for chemical examination. 17. Rule 8 relates to the procedure in taking samples from toddy shops and foreign liquor shops. I do not propose to lay down any proposition that under no circumstances in a case of Crl.M.C.Nos.466, 472 and 629 of 2011 -: 11 :- seizure of contraband from the possession of a person, the same is required to be subjected to chemical analysis nor as to the applicability of the Kerala Chemico-Legal Examination Rules, 1959 in the matter. Even going by Rule 8 of the Rules, the minimum quantity required to be taken for chemical analysis is 180ml. In the present case, it is not disputed that the liquid seized was below 180ml. Whether the said quantity was sufficient for chemical analysis, in spite of that the said process was not adhered to by detecting officer and the consequence of there being no chemical analysis of the remnant are all matters which the trial court has to decide. In the first and second cases the detecting officer is said to have identified the liquid as liquor by tasting and smelling while in the third case identification was made by smell of breath of petitioners. In all the cases Alcoquant test was also conducted and the test result revealed presence of liquor in the blood of petitioners. Though in relation to identification of ganja, in Dominic Vs. State of Kerala (1989 (1) KLT 601) this Court held: “The evidence of experienced officers that the article smelt of ganja cannot be rejected. Olfactory sense can be relied on, though that may not always be conclusive. It is common knowledge not to say experience of everyday life that many articles are identified by smell, particularly those one is familiar with. Smell is one of the senses of perception, with which man is endowed. It is as important, as sight or hearing. Many moments of Crl.M.C.Nos.466, 472 and 629 of 2011 -: 12 :- life are mingled with smells....” The above being the position it is for the trial court to decide having regard to the particular facts and circumstances of each case whether in the absence of chemical analysis evidence of the detecting officers regarding identification of the liquid as liquor could be accepted or not. I must also bear in mind that even after submission of final report, it is open to the prosecution to request the Court to send the liquid for chemical analysis invoking Sec.173(8) of the Code of Criminal Procedure (See Lohithakshan Vs. State of Kerala (1989(1) KLT 232). It may not also be possible to always insist that in a prosecution under Sec.15C of the Act, there should be chemical analysis report of the liquid. For instance, what would happen if the accused had consumed the entire liquid (liquor) before the detecting officer could seize the same?. Does it mean that in such a situation there could be no prosecution? Reason does not persuade me to think so. 18. The decision in Rajeev.P Vs. State of Kerala (supra) is distinguishable on facts. On facts the evidence of official witnesses as to identification of the liquid as liquor was found not satisfactory in that case. In that circumstance, absence of chemical analysis of the liquid was found fatal and the conviction of the accused was held to be unsustainable. That Crl.M.C.Nos.466, 472 and 629 of 2011 -: 13 :- decision cannot be applied to every case irrespective of its facts and circumstances, where there is no chemical analysis of the liquid. 19. Having regard to the facts and circumstances of the case, I answer the point raised by petitioners as follows: For the mere reason that the liquid seized was not subjected to chemical analysis and a report obtained it cannot be said that a prosecution under Sec.15C of the Abkari Act is not maintainable and hence is liable to be quashed. Whether the identification of the liquid as liquor made by the detecting officer could be accepted or not is a matter which the trial court has to decide having regard to the facts and circumstances of the each case, the method used for identification, the experience and expertise of the officer making the identification and all other relevant factors. Resultantly these petitions fails and are dismissed. The trial court shall decide on the materials on record whether identification of the liquid as liquor made by the detecting officers could be accepted or not. (THOMAS P JOSEPH, JUDGE) Sbna/-