085-NLR-NLR-V-65-D.-JOSEPH-Appellant-and-MARIAM-PILLAI-Police-Sergeant-Respondent.pdf
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HBHaT, J.—Joseph «. Mariam Pitta*
1963Present: Herat, J.
JOSEPH, Appellant, and MARIAM PILLAI (Police Sergeant),
Respondent
S. O. 979 of 1962—M. C. BaUicaloa, 5579
Misconduct in public by a drunken person—‘-'State of intoxication ”—Penal Code,e. 488.
When a man smells of liquor and behaves in a disorderly manner, it does notnecessarily follow that lie is in a state of intoxication within the meaning ofsection 488 of the Penal Code.
Appeal from a judgment of the Magistrate’s Court, Batticaloa.
No appearance for the accused-appeUant.
Q.P. 3. de Silva, Crown Counsel, for the Attorney-General.
February 11, 1963. H»ba.T, J.—
In this case the accused-appellant is unrepresented and absent, but, thelearned Crown Counsel, in the highest tradition of the Attorney-General’sDepartment, has brought to my notice a vital fact which vitiates theconviction.
The appellant was charged under Section 488 of the Penal Code whichreads as follows :—
“ Whoever, in a state of intoxication, appears in any public place orin any place which it is a trespass in him to enter, and there conducts
Ponnudurai v. Sumanaweera
407
himself in such a manner as to cause annoyance to any person, shall bepunished ■with simple imprisonment for a term which may extend toone month, or with fine which may extend to one hundred rupees., orwith both. ”
The evidence for the prosecution was that of a police officer who says thathe found the accused-appellant strongly smelling of liquor and behaving‘in a disorderly manner. This officer further stated that the accnsed-appellant was not in a position to make a statement.
It must be noted that one of the elements of the offence is that the personcharged should be in a “ state of intoxication ” at the time of the offence.The accused-appellant was not examined by any medical officer who couldhave reported as to whether the appellant was in an intoxicated state.Because a man is smelling of liquor and behaving in a disorderly manner itdoes not necessarily follow that he is in a state of intoxication. I thereforehold that one vital element of the offence charged is not borne out by theevidence. This point had been taken in the lower Court but the learnedMagistrate thought that the evidence of the police officer, which I havereferred to above, was sufficient to establish that element of the offencetoo. I cannot agree with this view. I, therefore, allow the appeal andqnash the conviction.
Appeal allowed.
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