Chettur Sankaran Nair, J.
1. Correctness of the order of acquittal in Criminal Appeal No. 81/88 on the file of the Court of Session Kottayam Division, and correctness of the decision in Verghese v. State of Kerala (1990) 2 KLT 416, relying on which, acquittal was made arise for consideration. In calendar review, a Criminal P. C. was registered against the order of acquittal. 1 he matter then came up before Raja-sekharan J. The learned Judge doubted the correctness of the reported decision, and referred the matter to a Division Bench. Thus, it conies before us.
2. Appellant before the Court of Session (called the accused hereinafter), was convicted of the offence under Section 51(a) of the Kerala Police Act, by the trial Magistrate finding that he behaved in a disorderly manner under the influence of 'drink' in the office of PW 3 --Municipal Commissioner, at or about 3.30 p.m. on 19-9-1987. PW 3 made a report to PW 4--- Sub-Inspector of Police, who in turn deputed PW 2 to the Municipal Office. PW 2 arrested the accused and produced him for medical examination before PW 1 Doctor, who issued Ext. P 1 certificate. The Magistrate convicted the accused, relying largely on Ext. P 1 certificate.
3. The Sessions Judge relying on the decision in Varghese v. State of Kerala (1990) 2 KLT 416 acquitted the accused. The decision states :
The Supreme Court held that it cannot be said to be conclusively proved that a person has consumed alcohol, 'unless' urine or blood test was carried out, and mere smelling of alcohol, unsteady gait, dilation of pupils, incoherence in speech are not enough to come to any such conclusion. (Emphasis supplied)
For a fact, this statement is incorrect. The Supreme Court did not hold that drunkenness cannot be proved, 'unless' urine or blood test was made. The accused in that case was not charged with the offence of drunkenness either, and the court had no occasion to consider the elements necessary to establish a charge of drunkenness. The conviction was under Section 304(A) IPC, and Special Leave was limited only to the question of sentence, as the first sentence in the judgment shows. It was argued before the Supreme Court that a severe sentence was imposed by the trial Court on assumption that the accused drove a motor vehicle in a state of intoxication. The reasons that persuaded the trial court to that view, were that, the accused was of unsteady gait, and smelt of alcohol. Unsteady gait is often caused by narvousness, and smell by itself is not conclusive of drunkenness. That is all that the Supreme Court observed.
4. Whether there was disorderly behaviour induced by drink, is a question of fact, and this has to be determined on the basis of the facts of each case. Section 3 of the Evidence Act illustrates how a fact is proved. There is no justification for strait-jacketting proof, as urine and blood test alone, for purposes of Section 51(a) of the Kerala Police Act. That would be reading into the Section an additional or absolute requirement, not thought of by the legislature. Incidentally, the Act itself indicates relevant evidentiary concerns. In exercise of the power under Section 69 of the Act, a form of certificate is prescribed, enumerating relevant evidentiary facts. They are:
general behaviour, state of clothing, character of speech (thick, slurred, etc), self-control, memory, character of handwriting, pulse, temperature, state of skin, mouth and teeth; smell, appearance of eyes, pupils, gait, muscular co-ordination, etc.
5. Counsel for accused argued that drunkenness cannot be ascertained from smell. He referred us to observations in Forensic Medicine by Keith, Simpson, and Barnard Knight (9th Edition, Page 328). The authors state that no simple test is available to ascertain the degree of loss of self-control. But, relevant tests indicated by the Authors are,
state of clothing, general behaviour, appearance of conjunctive, state of tongue, smell of breath, character of speech, and manner of walking.'
All these, and additional tests are enumerated in the form prescribed under Section 69 of the Act. That apart, it is not the degree of drunkenness that determines culpability. If a person indulges in disorderly behaviour under the influence of drink, the offence is made out, irrespective of degree of drunkenness. Degree of drunkenness is material, only to the extent that it is the causative factor for disorderly behaviour. It would not only be against statutory prescriptions, but also medical authority to say that, . smelling of alcohol, unsteady gait, dilation of pupils, incoherence in speech are not enough to come to any such conlusion.
We reiterate again, that drunkenness is a question of fact. Considerations indicated by the Statute are, relevant considerations in determining the issue.
6. We are unable to agree that smell, unsteady gait, dilation of pupils and incoherent speech are not relevant considerations. We have already noticed that the Act and medical authority accept smell, unsteady gait etc. as determinative features. Incoherent speech can generally -- though not invariably, be an indication of inobriety. Sight, sound, olfactory sense, touch, etc. are faculties that aid human beings in reaching conclusions. Like identification is made by sight, or recognition is made by voice, identification of substances are made by smell. For that matter, identification of articles of food, fruits, flowers and perfumes are made by smell. To make out Roses of Jasmine or Lavender, no laboratory test is needed. We hasten to add that we are not laying down as a rule, that smell is invariably conclusive of the identity of an article. Determination is to be made on an overall assessment of facts and circumstances. But, we have no doubt that neither the Section, nor the decision of the Supreme Court yields the inference that a charge of drunkenness cannot be found 'unless' blood or urine is examined. If the state of law is such, that a conviction cannot be entered except on the basis of the tests indicated by the learned Judge, then any accused who refuses to subject himself to the tests, can evade the process of law. That is what the accused in this case did.
7. Offences of this nature have far-reaching impact on the tranquillity of life in society. Realistic standards must be adopted and unreal standards alien to life, cannot enter judicial evaluation in a criminal case. It is well to bear in mind the counsel of the Supreme Court that proof beyond doubt, is a guideline and not a fetish.
8. Counsel for the accused argued further that the certificate F.xt. P1 issued by PW 1 cannot be acted upon, as he has not repeated in his evidence the contents of the certificate. We notice that his evidence was not challenged on these aspects in the cross-examination. The certificate issued by him is referable to Section 35 of the Evidence Act. Sections 74 and 81 of the Evidence Act also merit consideration in this context. However, we are not expressing a final opinion because, the Court of Appeal which has the jurisdiction to go into facts, has not considered the case on merits. But, we are unable to agree with the view of the Sessions Judge that the prosecution case is 'false' (paragraph 5) because of a discrepancy regarding time. Normal presumption is that a witness speaking on oath, speaks the truth (State of Punjab v. Hari Singh : 1974CriLJ822 ). Evidence of a witness cannot be rejected on the basis of minor discrepancies, if he has no reason to implicate the accused falsely Abdul Razaq v. Nanhey : 1984CriLJ185 . It eludes comprehension, why PW 3 ---Municipal Commissioner, should falsely implicate the accused. Discrepancies may result, also due to varying powers of observation and retention State of Uttar Pradesh v. M.K. Anthony : 1985CriLJ493 . The Court cannot stamp the prosecution case as false, as it were, on hunches.
9. We think that the appeal should be considered afresh by the Court of Session, in the light of the observations made hereinafter, and in the light of arguments that may be addressed before that court. The judgment of the Court of Session in Criminal Appeal No. 81/88 is set aside, and the Sessions Judge will take back the appeal on file, and proceed further in accordance with law. The decision in Varghese v. State of Kerala 1990 (2) KLT 416 does not lay down the law correctly.