Karnataka High Court
M. Rajavalse vs State By Circle Inspector Of Police, ... on 23 July, 1998
Equivalent citations: I(1999)ACC218, 1999(1)ALT(CRI)328, 1999CRILJ58, 1998(6)KARLJ730
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. Being aggrieved by the order passed by the learned XXIII Additional City Civil and Sessions Judge in Cri. R.P. No. 37 of 1998 confirming the order passed by the learned Metropolitan Magistrate, Traffic Court I, Bangalore in C.C. No. 24934 of 1997 dismissing the application filed by the petitioner under Section 251, Cr. P,C. to stop further proceedings by discharging the accused, the petitioner has filed this petition under Section 482, Cr. P.C.
2. The learned Counsel for the petitioner submitted that if the entire case of the prosecution is taken as a whole no case is made out as against this petitioner; that the doctor's certificate only shows that he had consumed alcohol but not intoxicated and as such the impugned order is liable to be set aside.
3. However, the learned State Public Prosecutor vehemently argued that the case is set down for recording the evidence and the quantity of alcohol consumed by the petitioner will have to be spoken to by the doctor who examined him as per the requisition of the police and therefore the impugned order does not call for interference.
4. The brief facts of the case are that the Circle Inspector of Police attached to Traffic Zone booked a case against this petitioner on the allegation that on 29-11-1997 at about 10.15 p.m. the petitioner was riding the scooter under the influence of drinking and thereby he has committed an offence punishable under Section 185 of the Motor Vehicles Act, 1988 as amended in 1994. The petitioner was subjected to medical examination on the very night and the doctor has certified that the petitioner was found having consumed alcohol but not intoxicated, However, the charge-sheet was filed against the petitioner.
4-A. Section 185 of the Motor Vehicles Act, 1988 reads as follows:
"185. Driving by a drunken person or by a person under the influence of drugs.--Whoever, 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 analyser, or
(b) is under the 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".
5. Thus, from a reading of this section, it is abundantly clear that it is the duty of the prosecution to prove that the blood of the petitioner contained alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by breath analyser. There is nothing to indicate that alcohol exceeding 30 mg. per 100 ml. of blood was detected in the blood and the breath analyser test was conducted. The doctor also clearly stated that he had consumed alcohol but he was not intoxicated. Mere taking alcohol is not sufficient. The consumption of alcohol must be exceeding 30 mg. per 100 ml. of blood. No test in regard to detecting this. But, from the reading of sub-section (1) of Section 185 of Motor Vehicles Act, it is clear that the intendment of the legislature is that the person is prohibited from driving the vehicle if the alcohol consumed by him exceeds 30 mg. per 100 ml. of Wood and not consuming alcohol below the prescribed limit. In this case, the doctor has not given the quantity of alcohol found in the blood of the petitioner. The Investigating Officer after receipt of the medical report did not seek clarification from the doctor to furnish all the details required under Section 185 of the Motor Vehicles Act, such being the position, even if the doctor is examined, no useful purpose would be served. On the other hand, it would be a futile attempt on the part of the prosecution to lead evidence in this case.
6. The learned Courts below also have come to the conclusion that the medical report does not disclose the quantity of alcohol in the blood of the [deceased]. But both the Courts have held that it is not the stage at which the Court can discharge the accused. This findings of both the Courts are contrary to the decision rendered by the Hon'ble Supreme Court in a decision in Satish Mehra v Delhi Administration and Another, wherein their Lordships have held that if there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. Therefore, even if the case is taken up for trial, no useful purpose would be served. On the other hand, it is a waste of time and in view of this, I am not persuaded with the argument of the learned State Public Prosecutor that the prosecution must be given an opportunity to lead evidence in this case to establish the guilt of the accused.
7. Accordingly, this petition is allowed and the impugned orders are set aside and the petitioner is discharged.