Judgment :- 1. The petitioner was tried by the Sub Magistrate of Kozhikode for an offence under S.8(1)0) of the Kerala Prohibition Act (shortly stated the Act) for having consumed liquor within the prohibition area and was found guilty and sentenced to pay a fine of Rs. 500/-. In appeal to the Sub Divisional Magistrate of Malappuram the conviction and sentence were confirmed. Aggrieved with the order this revision has been filed. 2. Two witnesses were examined for the prosecution. Pw.1 is the Sub Inspector of Police who deposed that on 1-8-63 at about 5-45 p. m., while he was engaged in prohibition checking he found the petitioner along with another person seated in a compound called Rarichanthodi near the Payanakal fair price depot. Petitioner's companion Swami had a bottle of arrack with him and a glass and the petitioner was smelling liquor. So he was taken to the doctor, who examined him and certified that he had consumed alcohol. Ex-Pi is the certificate. Pw. 2 is the witness who was present at the place and saw the Sub Inspector arresting the accused. He would say that he actually saw the accused consuming liquor. Learned Sub Magistrate accepted the evidence of Pws.1 and 2 and on the strength of Ex-P1 certificate found the accused guilty of the offence charged. In appeal learned Sub Divisional Magistrate also believed the evidence of Pws.1 and 2 and confirmed the conviction and sentence. 3. Now there can be no doubt that the accused was arrested on the spot and within a couple of hours produced before the doctor. There is no reason to doubt the evidence of Pw. 1, but he does not say that he actually saw the accused consuming liquor. There is also no proof adduced that the bottle taken into custody from Swami, the person who was present with the accused, contained illicit liquor. Learned Sub Divisional Magistrate seems to have relied on the evidence of Pw. 2, but we feel that the evidence of Pw. 2 is not entitled to any credit. He is said to have been present at the time when Pw.1 arrested the accused. He seems to be more loyal than the King. While Pw.1 had no case that the accused was in possession of either the bottle or the glass, Pw. 2, but we feel that the evidence of Pw. 2 is not entitled to any credit. He is said to have been present at the time when Pw.1 arrested the accused. He seems to be more loyal than the King. While Pw.1 had no case that the accused was in possession of either the bottle or the glass, Pw. 2 would swear that the accused was in possession of the bottle and the glass and it was from him that the Sub Inspector, Pw.1 seized it. This is deliberately false. A reading of his evidence would show that he is clearly a got up witness, and it is extremely doubtful whether he was even present at the place at all. 4. Barring this, there is only the certificate Ex-P1 which contains the doctor's opinion that the accused had consumed alcohol. No data is furnished in the certificate and the doctor has not been examined as a witness. S.49A(8) of the Act provides for the reception of Ex-Pi, the drunkenness certificate without formal proof of the record by examining the doctor, and the section says the certificate may be used as evidence in the case. There are several decided cases which have taken the view that such a certificate containing merely the opinion and not the data on which the same is based cannot be acted upon. Reference may be made to the decisions in City Corporation of Trivandrum v. Antony (1962 KLT. 95) and Food Inspector, Kozhikode v. Muthuswamy Nadar (1962 KLT. 865). 5. Even otherwise, the fact that the accused when examined by the doctor was smelling alcohol would not be sufficient to bring home the guilt to the accused. It is the duty of the prosecution in a charge of an offence under S.8(1) 0) to prove that prohibited alcohol had been consumed and that duty does not cease by merely proving that the accused was smelling alcohol. Reference may be made to the decision of the Supreme Court in Pesikaka v. State of Bombay (1955 S.C.J. 73). Smell of alcohol would be present even if the person had taken some ayurvedic medicines like Aristams and Asavams. So in any view of the case the evidence is not sufficient to warrant an inference that prohibited alcohol had been consumed. The revision petition is, therefore, allowed and the conviction and sentence are set aside. Smell of alcohol would be present even if the person had taken some ayurvedic medicines like Aristams and Asavams. So in any view of the case the evidence is not sufficient to warrant an inference that prohibited alcohol had been consumed. The revision petition is, therefore, allowed and the conviction and sentence are set aside. Fine, if paid, would be refunded. Allowed.