Consuming alcohol in private place not offence; mere alcohol smell not evidence of intoxication: Kerala High Court

The Kerala High Court recently held that consumption of alcohol in a private place without causing nuisance to others will not attract any offence under law [Salim Kumar v. State of Kerala & Ors.]..Single judge Justice Sophy Thomas also said that mere smell of alcohol also cannot be construed to mean that the person was intoxicated or was under the influence of liquor."Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence. Mere smell of alcohol also cannot be construed to mean that the person was intoxicated or was under the influence of any liquor," the Court said. The Court, therefore, quashed the proceedings initiated against the petitioner under the Kerala Police Act.To arrive at its conclusion, the Court referred to the definition of intoxication as per Black's Law dictionary which says:"A diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption; drunkenness.".The order was passed on a petition moved by a village officer to quash the criminal case against him for offences punishable under Section 118(a) of the Kerala Police Act (the KP Act).The petitioner, represented by advocates IV Pramod, KV Sasidharan and Saira Souraj, submitted that he had been invited to the police station for identifying an accused where, upon not being able to identify the accused the police had foisted a "false case" against him..Section 118 (a) of KP Act, under which the petitioner was booked, reads as follows:“118. Penalty for causing grave violation of public order or danger:- Any person who.-(a) “is found in a public place, in an intoxicated manner or rioting condition or incapable of looking after himself----”.The Court expanded on the scope of this section by analysing it in three distinct parts:Intoxicated in a public place : A diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption can be considered intoxication but merely having consumed alcohol in a private place won't constitute an offence under the KP Act.Rioting condition: The behaviour which is violent/ uncontrolled, which is contrary to law, which may tend to disturb the sense of morality of the public or which may affect the public peace or decorum may be termed as riotous or disorderly behaviour. Incapable of looking after himself: Weakening of self control and self awareness, incapacity to know or realise the consequences of actions, incoherent speech, unsteady gait, staggering etc. and the manner in which he conducts himself towards fellow men are relevant factors to ascertain capability of taking care of ones self..Considering the instant case on merits, the Court noted that the only allegation in the FIR was that he was intoxicated and unable to control himself. Moreover, all the witnesses are police officers except one, who was the accused that the petitioner had been brought into the police station to identify.The Court opined that the very fact that the petitioner reached the police station, when he was asked to be present there, itself will negative the case of the prosecution that he was incapable of looking after himself even if it is taken for argument sake that he had consumed alcohol at that time."Even if it is taken for argument sake that the petitioner had consumed alcohol, the available facts and materials are not sufficient to suggest that, he was not able to control himself or he committed rioting inside the Police Station causing nuisance. He reached Police Station, only because he was asked to be present there. Prosecution has no case that the petitioner is having any criminal antecedents." the Court observed.It accordingly quashed the proceedings against the petitioner.[Read Order]