Delhi District Court
State .............Complainant vs (1)Chander Bhan S/O Sh. Khinnu Ram on 21 May, 2013
IN THE COURT OF SH MANOJ KUMAR
METROPOLITAN MAGISTRATE (TRAFFIC)02/SOUTH WEST
DISTRICT DWARKA COURTS: NEW DELHI
Vehicle No. DL 1RC 0412
Challan No. 34901920
CircleIGIA
State .............Complainant
Versus
(1)Chander Bhan S/o Sh. Khinnu Ram,
R/o WZ192, Raj Nagar, Palam Colony,
New Delhi. ..............Accused
(2) Bhim Sen Gupta S/o Sh. Raj Kumar
R/o RZG371, Raj Nagar, PartII,
Palam Colont, New Delhi ..............Accused
a) Challan No. of the case : 34901920
b) Date of commission of offence : 19.04.2012
c) Name of the complainant : State
d) Name of the accused, and his : (1) Chander Bhan S/o Sh. Khinnu
parentage & residence Ram, R/o WZ192, Raj Nagar,
Palam Colony, New Delhi.
(2) Bhim Sen Gupta S/o Sh. Raj
Kumar R/o RZG371, Raj Nagar,
PartII, Palam Colony, New Delhi
e) Offence complained of : U/s 11.7/177, 39/192, 125/177,
184, 185, 3/181, DMVR 6/177,
DMVR 7/177, DMVR 99.1/177
MV Act &
U/s 5/180 & 66/192 M V Act
(1/8)
f) Plea of accused : Pleaded not guilty and claimed trial.
g) Final order : Convicted u/s 185, 3/181, DMVR
6/177 and CMVR 115(7)/190 (2)
MV Act.
U/s 5/180 MV Act
h) Date of such order : 21.05.13
i) Date of institution of the case : 23.04.2012
j) Date of reserving the judgment : 01.05.2013
k) Date of pronouncing the judgment : 21.05.2013
JUDGMENT
1. The case of the prosecution in brief is that on 19.04.2012 at 07.05 PM, the accused namely Chander Bhan was driving a vehicle bearing no. DL 1RC 0412 while coming from the side of Centaur Hotel Side and going towards Centaur Crossing. The accused was stopped by Challaning Officer and it was found that he was driving under the influence (i.e. 440 mg/100ml) of Alcohol and carrying one extra passenger. There were five person (including one driver) in the vehicle. Furthermore, the accused was driving without a valid driving license, without badge, without PUCC and without proper uniform. Thereafter, ZO namely SI Rajesh Maurya issued a challan bearing no. 349019 dated 19.04.2012 u/s 11.7/177, 39/192, 125/177, 184, 185, 3/181, DMVR 6/177, DMVR 7/177, (2/8) DMVR 99.1/177 MV Act. The challan against the owner/accused of the vehicle was also made u/s 5/180, 66/192 MV Act and the same was handed over to the accused at the spot.
2. The accused persons appeared in the Court and were admitted to bail on furnishing bail bond as the offences were bailable in nature. Vide a separate order dated 23.04.2012, the vehicle in question was released on superdari on furnishing superdarinama in the sum of Rs. 2.00,000/ only. The notice of the accusation served upon the accused persons u/s 251 Cr.P.C. vide order dated 03.05.2012 to which they pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused persons, two prosecution witnesses namely PW1 SI Rajesh Maurya No. D3678/Traffic CircleIGIA & PW2 Ct. Rajpal No. 1362/T, Traffic CircleIGIA stepped into the witness box. PW1 proved the challan against the accused which was exhibited as Ex.PW1/A bearing his signatures at point "A" and the computerized slip of alcohol meter was also proved and exhibited as Ex.PW1/B. The challan against the owner of the vehicle was Ex. PW1/C. The witnesses was cross examined and thereafter the evidence of the prosecution was closed vide order dated 17.10.2012.
(3/8)
4. PW1 in his cross examination stated that alcometer test was conducted upon the accused and alcohol found in the blood was 440mg/100 ml. He further stated that no public witness was joined by him. He further stated that he do not know the name of extra passenger who was sitting in the offending vehicle at the time of challan. He further stated that he counted the persons on the vehicle. He further stated that section 39/192 MV Act was made as there were five person sitting in the vehicle including driver.
5. PW2 in his cross examination stated that the driver was driving the vehicle rightly at the time when he was coming towards us.
6. The statement of the accused persons u/s 313 of Cr.P.C. were recorded by putting the entire incriminating evidence to them by the Court. The accused Chander Bhan admitted that he has consumed alcohol at around 12 noon and at the time of challan he was quite sober. However, accused/driver admitted that he was having private driving license and do not have any badge. Accused persons denied to lead any defence evidence.
7. The defence raised by the accused are as follows: (1) Accused was not drunk as he was in full control of the vehicle.
(4/8) (2) Challaning Officer failed to record the statement of the passengers (3) Accused has been falsely implicated in the case. (4) Alcohol test was conducted but machine was not calibrated.
8. I have heard the counsel for the accused persons and Ld. APP for the state and I have perused the entire case file. The testimonies of the PW1 and PW2 brings out the followings: (1) PW1 correctly identified the accused before the Court. Thus, PW1 proved that the person named in the challan is the same person who was driving the vehicle at the time of the challan. Moreover, accused himself admitted in his statement u/s 313 Cr.P.C. that he was driving the vehicle at the relevant time. (2) The testimony of PW1 proved the factum of challan and the challan is Ex.PW1/A. (3) Breath Test was conducted upon the accused with the help of Alcohol Meter wherein the alcohol contents of the accused came out to be 440mg/100ml and computerized slip of Alcohol Meter proved by PW1and the same is exhibited as Ex. PW1/B. Accused himself admitted that breath alcohol meter test was conducted upon him. Thus, the testimonies of PW1 and PW2 proved the factum of challan, establishes the identity of the accused, place and time of challan, conducting of alcohol/breath test of the accused. Thus the (5/8) testimonies of PW1 and PW2 is consistent and corroborative of each other, hence, convincing and reliable in its totality.
The result of breath test is admissible in evidence as per Section 203 (6) MV Act. Sec203 (6) of MV Act lays down: "The results of a breath test made in pursuance of the provisions of this section shall be admissible in evidence. Explanation For the purposes of this section, "breath test", means a test for the purpose of obtaining an indication of the presence of alcohol in a person's blood carried out, on one or more specimens of breath provided by that person, by means of a device of a type approved by the Central Government, by notification in the Official Gazette, for the purpose of such a test".
9. Prosecution with the testimonies of PW1 and PW2 managed to prove that accused/driver was driving the vehicle. It is also proved that he was drunk at the time of challan. Accused in his statement u/s 313 Cr.P.C. admitted that he has consumed alcohol but stated that he was sober at the time of challan. Thus, there is nothing on record to suggest that accused was not driving the vehicle in drunkard state. Thus, all the incriminating factors taken together comes to the only conclusion that accused was driving the vehicle in a drunken state and alcohol meter test was conducted upon him and the same is admissible in evidence. Thus, in my considered (6/8) opinion, the prosecution proved the offence u/s 185 MV Act beyond reasonable doubt.
10.As far as, allegation regarding carrying one extra person above the limit of four persons is concerned, PW1 in his cross examination stated that he does not know the name of the extra passenger. Moreover, PW1 failed to mention the names and addresses of the passengers on the challan who were found traveling in the vehicle at the time of challan. No public witness was made by the challaning Officer in this regard. Thus, bare statement of the PW1 that four persons were traveling in the vehicle alongwith the accused not tenable.
Thus, prosecution failed to prove the charge of carrying one extra passenger against the accused. So, offence under DMVR 11(VII)/177 and Sec39/192 MV Act stands not proved. Since, these allegations remain unsubstantiated, there is no question of offence u/s 125/177 MV Act.
11. For offence u/s 3/181, DMVR 6/177 and CMVR 115(7) 190(2) are concerned, accused himself admitted that he has private driving license whereas for driving TSR commercial driving license is required. Hence, offence u/s 3/181 stands proved. Accused failed to produce the badge and PUCC of the vehicle. Hence, these (7/8) offence also stands proved. Accused stands acquitted u/s DMVR 7/177.
12. Accused namely Bhim Sen Gupta who is the owner of the vehicle was charged u/s 5/180 MV Act for allowing his driver to drive the vehicle without valid driving license. Accused/driver does not have valid driving license. Thus, offence u/s 5/180 against the owner/accused stands proved.
13.Let accused Chander Bhan be heard on quantum of sentence u/s 185, 3/181, DMVR 6/177 & CMVR 115(7)/190 (2) MV Act. Accused Bhim Sen Gupta be heard on quantum of sentence 5/180 MV Act.
(PRONOUNCED IN THE OPEN COURT ON 21.05.2013) (MANOJ KUMAR) MM(Traffic)02/SW/Dwarka New Delhi/ 21.05.2013 (8/8)