Delhi District Court
State vs . on 9 September, 2013
IN THE COURT OF SH. SANTOSH KUMAR SINGH METROPOLITAN
MAGISTRATE (TRAFFIC) DWARKA COURTS: DELHI
CHALLAN NO: 501503
CIRCLE: DWARKA
VEHICLE NUMBER: DL 3CU 9564
U/S: 185 and 146/196 of Motor Vehicles Act
IN THE MATTER OF:-
STATE
VS.
JAKIR HUSSAIN
S/O SH. ISMILE
R/O RZ-302E, VILLAGE AND POST OFFICE PALAM, DELHI
Date of institution : 17.04.2013
Date of reserving Judgment/Order : 27.08.2013
Date of pronouncement of Judgment/Order: 09.09.2013
JUDGMENT
Brief statement of reasons for the decision of the case :
1. The brief factual matrix of the case as contained in the challan are that on 06.04.2013 at about 22.33 PM, at Sector-12, Main Road, Dwarka while coming from the side of Sector-5 and going towards Sector-12, the accused was driving the vehicle bearing registration number DL 3CU 9564 (Car) which STATE VS. JAKIR HUSSAIN Page 1 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 when stopped smell of alcohol was coming from the mouth of the accused.
Thereafter, Breath Analysis Test was conducted upon the accused and as per report the quantity of alcohol in blood was found to be 440 mg/100ml. On these facts, the accused was challaned accordingly under section 185 and 146/196 of Motor Vehicle Act 1988 (herein after referred as MV Act). The RC of vehicle was impounded. Accused was arrested and was released on personal bond. The vehicle was handed over to Mr. Sanjay S/o Shri Jagdish.
2. That the accused moved an application to contest the matter, therefore, bail was granted to the accused as offences being bailable. Thereafter, notice of offences was framed on 06.05.2013 under section 185 and 146/196 of Motor Vehicles Act, read over and explained to accused to which he pleaded not guilty and claimed trial.
3. Prosecution examined two witnesses to prove its case. PW1 Inspector Shivani, TI, Dwarka and PW2 SI Satyawan No. 1154-D.
4. During examination of Prosecution Witnesses, it was deposed by PW1 that on dated 06.04.2013 at about 10.30 PM, she along with ZO Satyawan and other staff members was present near sector-4/12, Market, Dwarka where special drunken drive checking was being conducted under her supervision. At about 10.33 PM one vehicle bearing registration no. DL 3CU 9564 was coming from Sector-4, Dwarka side and going towards Sector-12, Dwarka side. The said vehicle was stopped. On being stopped smell of alcohol was coming from the mouth of the accused namely Jakir Hussain. On being checked by Breath Analyzer the content of alcohol was found to be 440 mg/100 STATE VS. JAKIR HUSSAIN Page 2 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 ml. Thereafter, a challan was prepared u/s 185 and 146/196 M. V. Act which is Ex. PW1/A which bears her designation at serial no. 1 as witness. The above said vehicle was handed over to Mr. Sanjay who was with the accused at that time.
5. PW2 SI Satyawan deposed that on dated 06.04.2013 he was posted as ZO in Punjabi Bagh Circle. He was informed at about 9.00 PM by MHC, PBC Circle that on 06.04.2013 he had to do his duty at Dwarka circle. He reached at Dwarka Sector-12 and met TI, Dwarka. Thereafter, challan book was issued to him. One vehicle bearing registration no. DL 3CU 9564 was stopped at about 10.30 PM and it was observed that smell of alcohol was coming from the mouth of the accused. Thereafter, breath analyzer/alcometer test was conducted upon the accused Jakir Hussain and the the content of alcohol was found to be 440 mg/100 ml. Which is Ex. PW2/A which bears his signature at point A and bears signature of accused. Thereafter, a challan was prepared u/s 185 and 146/196 M. V. Act which is already Ex. PW1/A which bears my signature at point B. The above said vehicle was handed over to Mr. Sanjay S/o Shri Jagdish R/o Palam Village who was with the accused at that time.
Both PWs correctly identified the accused namely Jakir Hussain during their examination in Court.
6. In cross examination of prosecution witnesses, PW1 admitted that present challan was prepared under her supervision. PW1 admitted that PW2 (Challaning Officer) conducted breath analyzer test upon the accused. That no special training was imparted to the Challaning Officer and no any certificate STATE VS. JAKIR HUSSAIN Page 3 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 was given to them. The reading as measured by the breath analyzer/alcometer was correct. PW1 admitted that no blood and urine test of the accused was conducted. PW1 admitted that accused did not misbehave with any of the police personnels present at the spot. PW1 also admitted that the accused did not collide with any vehicle or object or person. PW1 denied the suggestion that she was deposing falsely.
7. In cross examination PW2 denied the suggestion that the present challan was prepared on a telephonic call from a circle. He further denied that the present challan was prepared on the direction of the TI, Dwarka. He admitted that the accused person was in drunken condition at the time of challan and the present challan was prepared upon his inner conscious. PW2 admitted that he conducted the breath analyzer/alcometer test upon the accused and prepared the present challan in his handwriting. He hardly took 5 minutes to prepare the present challan. He prepared the present challan as near as 10.30 PM. He admitted that alcometer test was not conducted at 10.25 PM. He conducted the breath analyzer/alcometer test upon the accused at about 10.32 or 10.33 PM. He admitted that no public person was made a witness. PW2 admitted that he checked the documents like RC of the vehicle and DL of the accused but no insurance policy was produced. Accused did not misbehave with him and even did not collide with any other object, person or vehicle. Accused blew air only once in the breath analyzer/alcometer. He denied the suggestion that he was deposing falsely.
8. After the prosecution evidence closed, the statement of accused under section 313 Cr.P.C was recorded in which all the incriminating evidence STATE VS. JAKIR HUSSAIN Page 4 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 were put to the accused. In his statement accused admitted that he was driving the vehicle. He stated that he was not in drunken condition at the time of challan. He stated that he had shown the insurance certificate to the Challaning Officer at the spot. He admitted the fact that RC of vehicle was impounded in this case. Accused admitted his signature on challan Ex. PW1/A. But accused denied the breath analyzer report Ex. PW2/A and also his signature on it. Accused wanted to lead evidence in his defence. Thereafter, matter was fixed for DE.
On dated 17.08.2013 Ld. Defence counsel had submitted that accused did not want to lead any defence evidence. Separate statement of Ld. Defence counsel was recorded in this regard. In view of the statement, defence evidence stood closed.
9. During the course of arguments, Ld. APP for the state argued that there is no contradictions in the testimonies of PWs except the minor one regarding the timing i.e. 10.32 or 10.33 PM. But this contradiction does not have any bearing upon the core of this case. He argued that PWs correctly identified the accused in the court. He argued that PW2 conducted the breath analyzer test as also affirmed by PW1 in her deposition. He further argued that challan was prepared by PW2 as also corroborated by PW1. He further argued that PW2 has been authorized by Law to conduct breath analyzer test upon the accused and he did so during the discharge of his official duty. He argued that certificate of training for conducting breath analyzer test is not necessary as it does not have bearing on the outcome of the result as the same is generated by the breath analyzer which works only when proper air of blow is exercised in it, therefore, no special training/certificate is necessary. He argued that accused STATE VS. JAKIR HUSSAIN Page 5 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 had also admitted in his statement u/s 313 Cr.PC that he was challaned vide Ex. PW1/A. He further argued that accused had also admitted the fact that RC of the vehicle was impounded in this challan. He further argued that accused has simply denied the breath analyzer report Ex. PW2/A but did not dispute his signature upon it. He also argued that neither the challan nor signature on breath analyzer report had been disputed by the accused which clearly showed that accused was driving the vehicle at the relevant point of time under the influence of liquor. He argued that both PWs have corroborated each other on material particulars and defence has failed to bring out any contradictions in their testimonies. He further argued that breath analyzer report is admissible piece of evidence u/s 203 MV Act. He concluded his arguments submitting that prosecution has proved the case against the accused beyond the reasonable doubt.
10. Ld. defence counsel argued that the present challan was prepared by Challaning Officer on his inner Will. He argued that PW2 had admitted that he conducted the breath analyzer test upon the accused at about 10.32 to 10.33 PM. He further argued that PW2 also admitted that he prepared the challan as near as 10.30 PM after breath analyzer test therefore, there is a doubt that the present challan would have been prepared at 10.30 PM. He argued that the Challaning Officer conducted the breath analyzer test and prepared the present challan is not as per the prescribed/established law. He argued that no public person was made a witness and even PW2 did not make any effort to make any person as a public witness. He argued that a person who is under the high influence of liquor as mentioned in the challan would not remain in his proper sense and there is a possibility that he would misbehave with any STATE VS. JAKIR HUSSAIN Page 6 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 person/challaning officer and even he can collide with any person/object. He argued that no special training was imparted to the PW2 to conduct breath analyzer test nor any certificate is issued in this regard. He further argued that breath analyzer test was conducted by the untrained challaning officer and cannot be relied upon. Ld. defence counsel concluded his arguments by saying that accused was wrongly challaned and, therefore, he be acquitted from the case.
11. Arguments heard. Record perused. Ld. Counsel for the accused has taken the defence on the following points :-
1. No special training was given or imparted to the Challaning Officer to conduct breath analyzer test, therefore, test was conducted by untrained officer.
2. There is a doubt that whether breath analyzer test was conducted upon the accused before or after preparing the challan.
3. No public person was made a witness.
It is established rule of Criminal Jurisprudence that while appreciating the prosecution evidence the minor discrepancy and contradiction can not render the entire prosecution evidence useless and irrelevant unless such contradiction adversely affect the core of prosecution case.
12. Section 185 and section 202 of M. V. Act are reproduced as below :-
"As per section 185 M. V. Act driving by a drunken person or by a person under the influence STATE VS. JAKIR HUSSAIN Page 7 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 of drugs. - Woever, while driving, or attempting to drive, a motor vehicle-
(a) has, in his blood, alcohol exceeding 30 mg per 100 ml. of blood detected in a test by a breath analyzer, or
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
Shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation - For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle".
"As per section 202 of M. V. Act Power to arrest without warrant - (1) A police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under section 184, 185 or section 197:STATE VS. JAKIR HUSSAIN Page 8 of 13
VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 Provided that any person so arrested in connection with an offence punishable under section 185 shall, within two hours of his arrest, be subjected to a medical examination referred to in sections 203 and 204 by a registered medical practitioner failing which he shall be released from custody.
(2) A police officer in uniform may arrest without warrant any person, who has committed an offence under this Act, if such person refuses to give his name and address.
(3) A police officer arresting without warrant the driver of a motor vehicle shall if the circumstances so require take or cause to be taken any steps he may consider proper for the temporary disposal of the vehicle.
Reading these two sections i.e. 185 and 202 of M. V. Act together, it is clear that whosoever drives or attempts to drive the motor vehicle under the influence of liquor is a punishable offence, if the content of alcohol in the blood exceeds 30mg/100ml detected by Breath Analyzer or who drives under the influence of drug to such extent which makes the driver incapable to exercising proper control over the vehicle. As per section 185 M. V. Act, even for the first offender, law prescribes imprisonment for a term which may extend to six months or with fine which may extend to Rs. 2000/- or with both.
Section 202 of M. V. Act which gives power to the police officer in uniform to arrest a person, without warrant, who has committed an offence u/s 184, 185 and 197 M. V. Act. Proviso attached to this section says that if any STATE VS. JAKIR HUSSAIN Page 9 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 person is arrested u/s 185 M. V. Act then the police officer shall, within two hours of his arrest, subject him (arrestee) to medical examination referred to u/s 203 and 204 M. V. Act by Registered Medical Practitioner failing which he shall be released from custody.
Perusal of section 203 of M. V. Act talks about breath test which states that a police officer in uniform may asked a person driving or attempting to drive a motor vehicle in public place to provide one or more specimen of breath test, if such officer has reasonable cause to suspect that driver as committed offence u/s 185 M. V. Act. Proviso attached to section 203 M. V. Act requires that breath test be made soon after commission of such offence.
13. As regards the first defence that no special training was given or imparted to the Challaning Officer to conduct breath analyzer test, therefore, test was conducted by untrained officer is concerned. As regards this defence I am fully agreed with the arguments tendered by the Ld. APP that breath analyzer device works only when proper blow of air is exercised in it and the result comes out accordingly. Breath analyzer device measures the presence of alcohol in blood through breath exerted by the person upon whom the breath analyzer test is conducted. Therefore, result measured by the breath analyzer depends upon the breath exerted by a person. If anyone is not under the influence of alcohol then the result shown by the breath analyzer device will be zero. Hence, certificate of training is not necessary. Therefore, test if any is conducted by anyone having no certificate of training, it will not have any bearing on the outcome of the result as measured by the breath analyzer, therefore, this defence appears to be inconvincing.
STATE VS. JAKIR HUSSAIN Page 10 of 13VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503
14. As regards the second defence there is a doubt that whether breath analyzer test was conducted upon the accused before or after preparing the challan is concerned. In this regard law empowers the police officer to conduct breath analyzer test upon the person who is in influence of alcohol. Section 202 of MV Act prescribes that if Challaning Officer arrest the accused then within two hours of his arrest, arrestee shall be subjected to breath analyzer test. But in this case breath analyzer test was conducted at 10.33 PM as per the breath analyzer report and the same timing is mentioned on challan which means that first breath analyzer test was conducting and when the result was found positive immediately challan was prepared by the Challaning Officer, therefore, minor contradiction in the testimonies of PW2 does not have any bearing upon the core of this case. But in this case accused was arrested after conducting the breath analyzer test and was released on personal bond. Therefore, this argument does not have any legal force.
15. As regards the third defence regarding the fact that why public person was not made a witness in the case is concerned. In this regard I am of the view that no public person wants to become a witness in police case because they fear that they would be harassed by police and would face a lot of problems or inconvenience in attending the courts. Moreover the Hon'ble Supreme Court of India has held in various judgments that public witness is not necessary in each and every case because usually people do not come forward to become a witness.
Moreover, in the present case, both prosecution witnesses are police personnels who are public servants. PW-2 being the Challaning Officer STATE VS. JAKIR HUSSAIN Page 11 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 prepared the challan, exhibited as Ex.PW1/A, in discharge of his official duty and another witness PW-1 was also on duty. As per Indian Evidence Act 1872, both PWs are competent witnesses and their testimonies are reliable and corroborative in nature. There is no law which makes their testimonies dis- believable, hence their testimonies are credible. Hence, the arguments of Ld. Counsel for accused that no public person was made a witness in the present case by the challaning officer seems to be in-convincing.
16. Its a fact that drunken driving is supposed to be a menace to the society at large. Many innocent people have lost their precious life on road because of the drivers who drive the vehicle under drunken condition. Persons who drive the vehicle under inebriated condition do not respect the traffic rules and rule of law which are essential to regulate the civil society. Even drunken drivers have no respect to the life of innocent road users who either ply their small vehicles or simply walk on the road. Rule of law is made to maintain peace and harmony in society. Every citizen is duty bound to obey traffic rules as well as Rule of law. Drunken drivers show disrespect and disregard to the established traffic rules as well as Rule of law. Commission of such offences cannot be taken as a cup of tea and offenders cannot be allowed to drive/ply their vehicles on road under drunken condition. Accidents due to drunken driving can be avoided if such offenders are punished as per established Rule of law. Therefore, in my view drunken driving should not be taken lightly.
In this present case accused was driving the Car under the high influence of alcohol without insurance policy itself shows that he has no respect towards the rule of law and to the life of innocent road users. Moreover, driving the Car under the influence of liquor put the life of other innocent road users in STATE VS. JAKIR HUSSAIN Page 12 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503 danger and causes grave inconvenience and threat to other small vehicles plying on the road.
17. In view of what have been discussed above prosecution has established a strong case against the accused and the defence has not been able to shake the credit of the prosecution witnesses. From the corroborated testimonies of prosecution witnesses and the Breath Alcohol Analysis Report, it is apparent that alcohol content in blood of accused was found exceeding 30mg/100ml. Prosecution has established the case against the accused beyond reasonable doubt, therefore, this court hold the guilt of accused stands established beyond reasonable doubt. Thus, accused is hereby convicted for the offence punishable u/s 185 of Motor Vehicle Act.
(ANNOUNCED IN THE OPEN COURT ON 09.09.2013) This Judgment contains 13 Pages and each paper is signed by me.
(SANTOSH KUMAR SINGH) METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT (TRAFFIC-01) DWARKA COURTS, DELHI/09.09.2013 STATE VS. JAKIR HUSSAIN Page 13 of 13 VEHICLE NO. DL 3CU 9564 CHALLAN NO: 501503