RAJEEV P. Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 CC No. 404 of 2006 of the Court of learned Judicial First Class Magistrate, Kayamkulam for offence punishable under S.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 PW 3, 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. PW 2 is a constable and PW 3, 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. PW 3 by smelling and tasting identified the liquid as liquor and arrested petitioners. The bottles containing liquor were seized as per Ext. P5. Case was registered against the petitioners. PW 1 is the medical officer who examined petitioners on 19/03/2006 at about 9 p.m. and issued Exts. P1 to P4. Evidence of PW 1 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 PW 1 has not ruled out the possibility of consumption of ayurvedic medicine producing smell of alcohol. PW 3 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 PW 3 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 KHC 267 : 1965 KLT 1002 : ILR 1965 (2) Ker. 547, Francis v. State of Kerala, 1965 KHC 278 : 1965 KLT 1034 : 1965 KLJ 1058, Muthan Ankamuthu v. State of Kerala, 1970 KHC 86 : 1970 KLT 427 : 1970 KLJ 490 : 1971 KLR 197 and State of Andhra Pradesh v. Madiga Boosenna, 1967 KHC 721 : AIR 1967 SC 1550 : 1967 (3) SCR 871 : 1968 MLJ (Cri) 12 : 1967 CriLJ 1398 . 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 by smelling and tasting is not by itself sufficient to warrant conviction.

(3.) It is true that PW 3 stated that the quantity of the contraband are small and that is why the same was not send for chemical examination. R.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 PW 3 show that in the bottle having capacity of 375ml there was 200ml of the liquid. That was sufficient for chemical examination. Hence PW 3 cannot contend that the quantity was not sufficient for chemical examination.