IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.MC.No. 888 of 2011() ------------------------ ST.1012/2011 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY .................... PETITIONER(S): ---------------------- 1. JOJO, AGED 29 YEARS, S/O.VARGHESE, ARACKAL HOUSE, NAYARAMBALAM VILLAGE, VYPIN, ERNAKULAM DISTRICT. 2. SAJEEV, AGED 34 YEARS, S/O.MOHANAN, EDAKADU HOUSE, NAYARAMBALAM VILLAGE, VYPIN, ERNAKULAM DISTRICT. 3. JOMON CHAKKO, AGED 31 YEARS, S/O.CHAKKO, WADAKANCHERY HOUSE, ALANGADU VILLAGE, ALUVA, ERNAKULAM DISTRICT. 4. BENNY, AGED 36 YEARS, S/O.JOSEPH, MADATHIPARAMBIL HOUSE, NAYARAMBALAM VILLAGE, VYPIN, ERNAKULAM DISTRICT. 5. JOSEPH, AGED 37 YEARS, S/O.VARATHUTTY, MADATHIPARAMBIL HOUSE, NAYARAMBALAM VILLAGE, VYPIN, ERNAKULAM DISTRICT. 6. ULLASE, AGED 28 YEARS, S/O.VISWAMBARAN, SASTHAMPARAMBIL HOUSE, NAYARAMBALAM VILLAGE, VYPIN, ERNAKULAM DISTRICT. BY ADV. SRI.SAJIV.C.KRISHNAN RESPONDENTS/COMPLAINANTS ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, MALA POLICE STATION. BY PUBLIC PROSECUTOR SRI.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.888 of 2011 -------------------------------------- Dated this the 22nd day of March, 2011. ORDER Petitioners are accused 1 to 6 in Crime No.828 of 2010 of Mala Police Station and S.T.No.1012 of 2011 of the court of learned Judicial First Class Magistrate-IV, Chalakkudy for offence punishable under Section 15C of the Abkari Act (for short, “the Act”). Case is that on 07.11.2010 at about 7.30 a.m. respondent No.2 found petitioners engaged in consuming liquor in a scorpio car parked on the side of the road with its doors open, some of petitioners sitting inside and others standing outside the car. Petitioners challenge the final report and cognizance taken against them on three grounds; viz. that the liquid was not subjected to chemical examination, there was no blood test conducted and that a vehicle is not a public place. Reliance is placed on the decisions in Manikandan v. State of Kerala (1999 (2) KLT 592) and Rajeev P. and others v. State of Kerala and another (2009 (2) KLD 656). I have heard learned counsel for petitioners and the learned Public Prosecutor. 2. So far as the contention that the liquid was not sent for chemical examination and that there was no blood test is concerned, referring to the decision in Rajeev P. and others v. State of Kerala and another this Court in Cr.M.C.No.466 of 2011 and connected cases, by order dated March 7, 2011 has held that the said decision cannot be applied to every case Crl.MC No.888/2011 2 irrespective of its facts and circumstances as in that case conviction of the accused was set aside in view of lack of evidence including absence of a report of chemical examination. It was also held that the question whether the liquid allegedly consumed by the accused was liquor is a matter to be decided on the evidence of prosecution witnesses including the Detecting Officer. Whether identification of the liquid as liquor made 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 and surrounding circumstances including the experience and expertise of the Detecting Officer to identify liquor by tasting and smelling. In the case on hand the Detecting Officer claimed to have identified the liquid as liquor by tasting and smelling. Petitioners were also subjected to medical examination and drunkenness certificates are obtained which states that petitioners had smell of alcohol. Whether such evidence is sufficient to prove the prosecution case is a matter which the trial court has to decide. 3. So far as the contention that the incident was not at a public place is concerned, case is that the door of the car were kept open, some of the petitioners were inside the car and others were standing outside while consuming liquor. It is pointed out by learned counsel that it is not clear which of petitioners standing outside and who else were sitting inside. These are matters to be decided by the trial court. Having heard learned counsel for petitioners and the learned Public Prosecutor I find no reason to interfere under Section 482 of the Code of Criminal Procedure. Crl.MC No.888/2011 3 Resultantly this Criminal Miscellaneous Case is dismissed without prejudice to the right of petitioners to take all their contentions before the trial court. Trial court shall decide the case on the evidence before it. THOMAS P.JOSEPH, Judge. cks