The Kerala High Court has specified that the mere "smell" of liquor cannot be a base to proceed with legal action against an individual on charges of drinking. There should also be a scientific analysis, the court has asserted.
"It has to be proven that what the accused has consumed and what the officials have seized is liquor indeed, if a case has to be filed under the Abkari Act," Justice P. Ubaid ruled. The ruling comes on a petition filed by M.K. Mukesh of Vaikom, who sought to annul a case in which he was charged with drinking on the street in front of the Vaikom Taluk Hospital.
An alcometer test done during the arrest had recorded a strange 12,777.3 mg measure of liquor in Mukesh's 100 ml breath. The police blamed the odd measurement on machine error.
The court pointed out that it has to be proven that the accused consumed liquor in a public place if the case has to be sustained under Abkari Act 15-C. "Only a 50 ml liquor from a one-litre bottle was seized. It has not been subjected to a chemical test. The alcometer test is not acceptable as the machine is not reliable. The doctor at the hospital certified the accused as drunk going only by the smell. There have been court orders which have specified that the smell of liquor alone should not be a basis for a case."
The court stressed that if the prosecution cannot rely solely on the statement of officers and go by taste and smell and without an alcometer result, a blood test should be done at a hospital to get an accurate measure of liquor. "There was no lab test in this case," the judge pointed out. "There had been no scientific test to measure the liquor content in the blood."
The court, hence, ruled that the case cannot be proceeded with.