Delhi District Court
Digitally Signed vs The State on 1 October, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
CA No. 473 of 19
Digitally signed
SURESH by SURESH
KUMAR GUPTA
Aakash Negi KUMAR Date:
S/o Sh. Sarbir Singh Negi GUPTA 2019.10.01
16:27:53 +0530
R/o G337, Srinivas Puri
New Delhi ......Appellant
Versus
The State ......Respondent
Instituted on : 17.09.2019
Argued on : 28.09.2019
Decided on : 01.10.2019
JUDGMENT
1 The appellant has impugned the judgment dated 07.08.2019 vide which he has been convicted u/s 146/196, 132/179, 138(3)/177, 115/190(2), 184 and 185 MV Act and order on sentence dated 21.08.2019 vide which he is sentenced to undergo SI for 15 days u/s 185 MV Act, sentenced to pay fine of Rs. 1000/ for the offence u/s 146/196, and sentenced to pay fine of Rs. 100/ for the offence u/s 138 (3)/177 MV Act, sentenced to pay fine of Rs. 500/0 u/s 132/179 MV Act and sentenced to pay fine of Rs. 1,000/ u/s 115/190(2) MV Act and in default of payment of fine to undergo SI for 2 days. All the sentences shall run concurrently. Fine Aakash Negi Vs. State - CA No. 473 of 2019 1 of 9 is not paid in the court.
2 The appeal is filed on the grounds that insurance certificate was shown to the police officials. Thee was heavy traffic on the road so the question of driving the vehicle in a zig zag manner does not arise. It is not possible to hit Ct. Kapil and flee from the spot. Ct. Kapil has not been examined by the prosecution. No breath analyzer test was conducted. The evidence has not been properly appreciated. There is no evidence to connect him with the crime. Hence, this appeal.
3 Notice of the appeal is given to the prosecution. 4 The facts of the case are like this. On 04.05.2019, at 8PM at bus stop, Nehru Nagar, Traffic Circle, New Delhi, appellant was coming from Lajpat Nagar side while driving one car bearing Registration No. DL 12CJ7880 in a zig zag manner. Two persons were sitting inside the car who were consuming beer. A signal by blow of whistle was given to stop the car. Ct. Kapil gave a signal to the stop the car but the car driver tried to hit Ct. Kapil in order to flee from the spot but failed to do so. The car was got stopped. The car driver/appellant was apprehended who was directed to park the car on the road side. The breath analysis test was conducted through alchometer. The alcohol contents were found to be 180 mg/100 ml of the alcohol which were more than the permissible limit of 30mg/100ml of alcohol. The appellant had failed to produce PUC and insurance. The challan chit was issued to the appellant. 5 The appellant has put his appearance in the Court. NOA u/s 251 Cr.PC for the offence u/s 184, 185, 132/179, 138(3) /177, 146/196, Aakash Negi Vs. State - CA No. 473 of 2019 2 of 9 115/190(2), and 179 MV Act was put to the appellant to which he pleaded not guilty and claimed trial.
6 The prosecution has examined two witnesses. The prosecution evidence is closed. The appellant is examined u/s 313 Cr.PC. wherein he has admitted that he was driving the car in question. He has shown insurance papers to the police but he was slapped and challan was issued. He has called his sister on mobile but his phone was snatched by the police officials. He was abused. He has not consumed liquor. He has been falsely implicated. He has examined one witness in defence evidence. 7 Ld. Trial Court after perusing the entire evidence on record and hearing Ld. Addl.PP for the State and Ld. Defence Counsel has convicted and sentenced the appellant.
8 PW1 SI Rajinder Singh stated that on 04.02.2019 he was posted as ZO at Traffic Circle, LNC, New Delhi. On that day he alongwith PW2 ASI Ajit Malik, ASI Pratap Singh and Ct. Kapil was on duty at Bus Stop, Nehru Nagar, New Delhi. At 8 PM the appellant was found coming in a zig zag manner in a car bearing no. DL12CJ7880 from Lajpat Nagar side. Two persons were consuming bear in the car. A whistle was blown by him. He asked Ct. Kapil to stop the car who gave signal to stop the car but the appellant drove the car in a zig zag manner and tried to hit Ct. Kapil. The appellant could not flee due to heavy traffic on the road. Ct. Kapil got the car stopped by coming in front of him. The appellant was apprehended. The appellant has failed to produce Insurance Certificate and PUC of the vehicle. He has blown the alcohol meter and reading was brought to zero.
Aakash Negi Vs. State - CA No. 473 of 2019 3 of 9 The appellant was asked to undergo Breath Analysis Test. The alcohol contents were found to be 180 mg/100 ml of the alcohol which were more than the permissible limit. The print out of the alcohol meter is Ex. PW1/A. The challan chit Ex.PW1/B was issued to the appellant. The challan chit Ex. PW1/C regarding impounding of vehicle was issued. The challan against the owner was also issued which is Ex. PW1/D. He has identified the appellant. During cross examination he stated that both the occupants of the car were consuming beer. Bottle of beer was not seized. Ct. Kapil is not a witness in this case. They did not make a call at 100 or filed any complaint against the appellant. The number of alcoho meter is 80802221 but no certificate of alcoho meter is placed on record. The suggestion is denied that Ct. Kapil was not on the spot or there was no beer bottle in the car or that alcoho meter is not approved by the government or that no breath analyzer test of the appellant was conducted and challan chit Ex. PW1/A pertains to some other person or that Ct. Kapil has misbehaved with the appellant which resulted into scuffle. No blood test was conducted. The appellant was arrested.
9 PW2 ASI Ajit Malik has corroborated the version of PW1. During crossexamination he stated that alcohometer was with SI Rajinder Singh. No separate call was made at No. 100 by him or by Ct. Kapil. He cannot recognize the signature of SI Rajinder on the challan chit.The appellant was tested with breath analyzer by SI Rajinder who has clicked the pthoto of appellant at the time of test. SI Rajinder has first tested himself. The bottles were not seized from the car. The suggestion is denied Aakash Negi Vs. State - CA No. 473 of 2019 4 of 9 that bottles were not seized as there was no bottle inside the car or no alcohometer test was conducted or appellant is falsely implicated. 10 The appellant has examined himself as DW1. He stated that on 4.2.2019 in between 78pm he was going towards Ashram in his car. He was caught by the police officials and asked to show him the documents of the car. The police officials abused and slapped him. He was searching the documents in the car but by that time challan chit was issued to him. He has called his sister on phone but his phone was snatched. He was slapped by saying that why he is making the video. During crossexamination he stated that he is a student. He is 21 years old. He was driving the car on the day of incident. His friend Rohit was with him. The suggestion is denied that no test was conducted before issuing the challan chit. 11 Ld. Counsel for the appellant submitted that appellant is Breath Analysis Test is not a fool proof test. He further submitted that no public person has been associated by the police officials. He further submitted that no call was made at No. 100 in case the appellant has tried to hit his car against Ct. Kapil. He further submitted that it is not possible to drive the car in a zig zag manner on a busy road.
12 Ld. Addl. PP for the State submitted that Breath Analysis Report in itself is a complete report which can be relied upon. He further submitted that testimony of PWs is consistent which can be relied upon even if no independent witness was associated. He further submitted that testimony of police officials cannot be viewed with suspicion in case no call was made at No. 100.
Aakash Negi Vs. State - CA No. 473 of 2019 5 of 9 13 Heard and perused the record. 14 Section 185 MV Act says that whoever driving or attempting
to drive a Motor Vehicle has in his blood alcohol exceeding 30 mg/100 ml of blood is under the influence of liquor if it is detected by the test of Breath Analyzer.
15 Section 203 (1) MV Act says that any police officer in uniform or any officer of MV Department may require any person driving or attempting to drive the motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby if such police officer or officer has any reasonable cause to suspect him of having committed an offence u/s 185 MV Act. Provided that requirement for breath test shall be made as soon as reasonably practicable after the commission of the offence.
16 The bare reading of Section 203 MV Act shows that one or more specimens of breath for breath test can be taken. The one specimen breath test was taken by means of alchometer. The requirements of Section 203 (1) MV Act have been complied with. Section 203 (5) MV Act says that the result of breath test shall be admissible in evidence. The breath test analysis taken u/s 203 (1) MV Act is admissible in evidence. 17 The prosecution has examined two witnesses in order to prove its case. The testimony PW1 & 2 clearly shows that on 04.02.2019 at 8PM at bus stop, Nehru Nagar, Lajpat Nagar Traffic Circle, they were on duty. Their testimony shows that appellant was found coming from Lajpat Nagar side in car No. DL12CJ7880 in a zig zag manner who was stopped.DW1 Aakash Negi Vs. State - CA No. 473 of 2019 6 of 9 has admitted that he was driving the car and his car was stopped by the police officials. The testimony of PW1 and PW2 is clear that appellant was stopped while he was coming in the car in question. The appellant was asked to produce the documents of the car. The appellant has failed to produce the documents though he has taken a bald plea that he has shown insurance papers to the police officials. The testimony of PW1 and PW2 clearly shows that the appellant has failed to show the documents of the vehicle. There is nothing on the record to view their testimony with the aid of spectacles.
18 The testimony of PW1 shows that he has blown alcohometer and brought the reading to zero. There was no need to take out the separate sheet shwong the reading as zero. Their testimony further shows that appellant was directed to blow in the alcometer. The contents of alcohol were 180mg/100ml of alcohol. The testimony of PW1 and 2 on the material point has gone unrebutted.
19 The alcohometer is calibrated till 15.12.2018. This shows that there is nothing to create doubt that alcohometer was not functioning properly.
20 It is clear from the testimony of PWs that appellant tried to hit the car against Ct. Kapil when he tried to stop the car. Ct. Kapil is not examined by the prosecution. No call was made at No. 100 regarding this particular aspect. The appellant is not charged with the allegations that he has also tried to hit Ct. Kapil with his car. The appellant has examined himself as DW1 but no fact contrary to the allegation to this effect has Aakash Negi Vs. State - CA No. 473 of 2019 7 of 9 come in his testimony. In these facts, non examination of Ct. Kapil does not make any difference.
21 There is no reason on the part of PW1 & 2 to implicate the appellant. The testimony of PW1 & 2 is consistent without any major contradiction on record. Nothing has come in the testimony of DW1 to create any doubt on the prosecuiton version. The appellant could have examined his friend and his sister to show that no such incident as projected by the prosecution has taken place. The appellant has failed to further the defence.
22 The testimony of PWs cannot be viewed with the aid of spectacles. Their testimony is cogent, convincing and trust worthy which is relied upon.
23 I do not find any infirmity in the judgment dated 07.08.2019 passed by Ld. Trial Court and accordingly, the judgment of conviction is upheld.
24 Ld. Counsel for the appellant submitted that appellant is 21 years old who is college going student. He further submitted that any substantive sentence will affect his career so request is made to take a lenient view.
25 Ld. Addl.PP for the State has urged to the contrary. 26 Heard. The appellant is first and young offender. The appellant is a college going student and any substantive sentence will affect his future prospects.
24 Keeping in view these facts, the order on sentence qua Aakash Negi Vs. State - CA No. 473 of 2019 8 of 9
Section 185 MV Act is modified. He is sentenced to undergo imprisonment till rising of the court with fine of Rs. 3000/ under Section 185 MV Act and in default of payment of fine to undergo SI for seven days and rest of the sentence for different offences is upheld. The driving license of the appellant is suspended for a period of 3 months from today and intimation to this effect be sent to the concerned authority. 25 Fine paid in the court.
26 Attested copy of the judgment be supplied to the appellant free of cost.
27 TCR alongwith copy of judgment be sent to the Ld. Trial Court for compliance.
28 Appeal file be consigned to record room.
Announced in open court on 1st October, 2019 (SURESH KUMAR GUPTA) Addl. Sessions Judge04 & Spl. Judge (NDPS) South East, Saket Courts,New Delhi Aakash Negi Vs. State - CA No. 473 of 2019 9 of 9