Delhi District Court
Naushad M. vs . State on 21 December, 2018
CA No: 422/18
Naushad M. Vs. State
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBI-I
DWARKA COURTS; NEW DELHI
Naushad M..
S/o Mohamad Kunag
R/o A-886, A-Block
Janta Flats, Sector-2
Rohini, Delhi.
Presently at:-
34-B, B-Block
Harijan Basti
Sitapuri, Delhi.
......... Appellant
VERSUS
The State (NCT of Delhi)
.......Respondent
CA No. 422/18
Date of Institution 15.11.2018
Reserved for orders on 12.12.2018
Judgment announced on 21.12.2018
JUDGMENT
1. This is an appeal under Section 375 of Cr.P.C. against the judgment and order on CA No: 422/18 Page 1 of 8 D.O.J 21.12.2018 CA No: 422/18 Naushad M. Vs. State sentence dated 18.10.2018 passed by Ld. MM
-03, South West, Delhi whereby Ld. MM has been pleased to convict the appellant for the offence under Section 185 of the Motor Vehicle Act, 1988 (herein after called the MV Act) and the appellant has been sentenced to fine of Rs. 2000/- and simple imprisonment of 7 days and in default of payment of fine, simple imprisonment for two days.
2. The allegations against the appellant are that on 14.04.2018 at about 20:15 hours, the appellant was found driving a private two wheeler No.DL- 9SAY 5413 in a drunken state and he was stopped by the officials of Traffic Police at Pankha Road, Janak Cinema, Delhi and appellant was found smelling of alcohol and he was subjected to Breath Alcohol Analysis Test and the Alcohol content in the blood of appellant was found to be 289 mg/100 ml which was found to be much higher than the permissible limit of 30 mg/100 ml and consequently, the appellant was challaned for offence under Section 3/181 MV Act, 146/196 MV Act, 129/177 MV Act, RRR32/177 MV Act, CMVR115/190(2) MV Act and Section 185 of the Motor Vehicle Act, 1988 and the appellant was CA No: 422/18 Page 2 of 8 D.O.J 21.12.2018 CA No: 422/18 Naushad M. Vs. State sent for trial to the court of Ld. MM.
3. As per the impugned order dated 18.10.2018, the appellant had appeared before Ld. MM and accusation was explained to appellant by Ld. MM to which he pleaded guilty voluntarily vide STR entry no.30 and the appellant was convicted for offence 185 of the Motor Vehicle Act, 1988 and was sentenced to simple imprisonment for 07 days and a fine of Rs. 2000/- under Section 185 of MV Act and in default of payment of fine Simple Imprisonment for 02 days.
4. Arguments heard and record perused.
5. It is stated in the appeal that impugned order has been passed on the basis of surmises and conjectures. It is stated that the appellant had pleaded guilty before Ld. Trial Court on the instructions of his previous counsel without knowing the result of the plea of guilt. It is stated that appellant belongs to a poor family having two school going children and he is a driver by profession and is the only bread earner in his family and will suffer irreparable loss and injury if appeal is not allowed. It is stated in the appeal that appellant has already complied with the CA No: 422/18 Page 3 of 8 D.O.J 21.12.2018 CA No: 422/18 Naushad M. Vs. State terms and conditions as imposed on him by participating in the classes conducted in the office of Assistant Commissioner of Police, Road Safety Cell-Traffic. It is further stated in the appeal that he is the first offender.
6. Ld. Addl. PP has contended that the appeal is barred by provisions of Section 375 Cr.P.C. as the appellant had voluntarily pleaded guilty and he has been convicted on the basis of plea of guilt.
7. The contention of Ld. Counsel for the appellant is that appellant is a young man of 36 years of age and has to support a family consisting of wife, two children aged about 9 years and 12 years who are studying in third standard and seventh standard and he is working as a helper in the shop and is earning of Rs. 8000/- per month. It is further contended that the appellant is not a previous convict and is the first offender and has clean antecedents. It is further contended by Ld. Counsel for the appellant that appellant has pleaded guilty on the instruction of his previous counsel and he was not aware about the consequences of plead of guilt. It is contended that fine has already been deposited.
CA No: 422/18 Page 4 of 8 D.O.J 21.12.2018 CA No: 422/18 Naushad M. Vs. State
8. It is further contended that appellant should be dealt with under Section 360 Cr.P.C. or under the provision of the Probation of Offenders Act 1958.
9. Section 185 of the MV Act reads as :
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 30mg. 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.
Explanation.- For the purposes of this CA No: 422/18 Page 5 of 8 D.O.J 21.12.2018 CA No: 422/18 Naushad M. Vs. State 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.
10. As per allegations of prosecution, the appellant was driving a private two wheeler vehicle and the alcohol content in the blood of appellant was found to be 289mg/100 ml while the maximum permissible limit as prescribed by Section 185 of Motor Vehicle Act is 30mg/100ml. Hence, the appellant was driving a two wheeler vehicle while the alcohol content in his blood was more than 9 times the prescribed permissible limit of 30mg/100ml.
11. By driving the vehicle in highly intoxicated state , the appellant was not only risking his own life but he was risking the lives of other road users also.
12. In the impugned order dated 18.10.2018, Ld. MM has been pleased to observe that the said court does not think fit that the appellant be dealt under Section 360 Cr.P.C. or under the provisions of The Probation of CA No: 422/18 Page 6 of 8 D.O.J 21.12.2018 CA No: 422/18 Naushad M. Vs. State Offenders Act, 1958. In the totality of circumstances, I am of the view that Ld. MM has exercised his discretion in this regard judiciously and there is no ground to interfere in the same.
13. In the impugned order, Ld. MM has observed that the maximum punishment provided under Section 185 of the MV Act is six months imprisonment but on the balancing of interest of justice and also keeping the interest of convict in mind, the convict/appellant was sentenced to SI for 07 days alongwith fine of Rs.2000/- under Section 185 of Motor Vehicle Act and in default of payment of fine Simple Imprisonment for 02 days. .
14. Ld. MM has exhibited sensitivity while sentencing the appellant for various offences for which he was sent for trial by imposing term of imprisonment of 07 days and fine of Rs. 2000/-.
15. However, prayer for lenient view has been made on behalf of appellant stating that appellant is working in a shop as a helper and is the first offender and it is contended that sending of appellant to jail will spoil his social reputation and moreover in the absence of appellant, there will be no-one to look after his CA No: 422/18 Page 7 of 8 D.O.J 21.12.2018 CA No: 422/18 Naushad M. Vs. State family consisting of wife, two children aged about about 9 years and 12 years who are studying in third standard and seventh standard.
16. In the totality of the circumstances and looking at the family circumstances of the appellant, I am of the view that interest of justice would be served if the convict is sentenced to fine of Rs. 2000/- ( Two thousand only). As per Trial Court Record, the total fine of Rs. 2000/- ( Two Thousand) has already been deposited. Sentence as imposed on the appellant vide impugned order dated 18.10.2018 stands modified accordingly. Appeal stands disposed of.
17. The bail bond under Section 437A Cr.P.C. shall remain in force for a period of six months.
18. Appeal file be consigned to record room .
19. TCR be sent back to court concerned along with copy of this judgment.
Announced in the open (HARISH DUDANI) Court on 21.12.2018 Special Judge,( PC Act)CBI-I Dwarka Courts, New Delhi.
Digitally signed by HARISH HARISH DUDANI
DUDANI Date: 2018.12.21
14:56:35 +0530
CA No: 422/18 Page 8 of 8 D.O.J 21.12.2018