Bombay High Court
Mr. Nikhil Wagle & Ors vs The State Of Maharashtra & Ors on 7 January, 2016
Bench: A.S. Oka, G.S. Patel
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.77 OF 2002
Mr. Nikhil Wagle and Others. .. Petitioners
Vs
The State of Maharashtra and Others. .. Respondents
-
Shri S.V. Kotwal, the Advocate appointed as Amicus Curiae.
Shri Niteen V. Pradhan i/b Ms.Shubhada Khot and Ms. Ameeta
Kuttikrishnan for the Petitioners.
Shri A.B. Vagyani, Government Pleader along with Mrs. M.P. Thakur,
AGP and Shri C.P. Yadav, AGP and Ms. Tintina Hazarika for the
Respondent Nos.1 to 3.
Shri Parag Vyas along with Shri Ashok R. Varma for the Respondent
No.5 Union of India.
--
CORAM : A.S. OKA & G.S. PATEL, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 23RD DECEMBER 2015.
DATE ON WHICH THE ORDER IS PRONOUNCED: 7TH JANUARY 2016.
ORDER :
1. Rule has been already issued in this Public Interest Litigation and the same is pending for final disposal. This Public Interest Litigation has appeared on board from time to time under the caption of "Directions" for reporting compliance by the Union of India with the directions issued earlier. The occasion for filing the present ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 2 pil-77.02 Public Interest Litigation is an incident of the early morning of 28 th November 2002 in Mumbai in which the Fourth Respondent, who is a popular Hindi Cine-star, was allegedly involved. During the pendency of this Petition, he was convicted by the Court of Sessions for various offences including those punishable under Section 304 Part II of the Indian Penal Code and Section 185 of the Motor Vehicles Act,1988(for short "M.V.Act"). It is alleged that he was found driving a car while he was under the influence of alcohol.
2. The order of conviction passed by the Sessions Court was set aside by learned Single Judge of this Court 1. Today, the learned Government Pleader on instructions states that the State Government has taken a decision to immediately prefer a Special Leave Petition before the Apex Court for challenging the said judgment and order of the learned Single Judge of this Court. He states that the Special Leave Petition will be filed in January 2016. In view of this statement, for the time being, we are not considering the implications of the observations made by the learned Single Judge in the said judgment and order about the major defects in the investigation. Nevertheless, appropriate interim directions will have to be issued considering the fact that in the recent past, there have been large number of cases involving violation of Section 185 of the M.V. Act. During last few years there have been number of cases of accidents involving motor vehicles driven by persons 1 Criminal Appeal No.572 of 2015 decided on 7th, 8th, 9th and 10th December 2015.
::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::ash 3 pil-77.02 who were under the influence of alcohol and who were guilty of violation of clause (a) of Section 185 of the M.V.Act.
3. The Apex Court has dealt with the issue of drunken driving in several cases. Recently, in the case of State Through P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda2. In paragraph 86, the Apex Court has succinctly noted the issue involved which reads thus:
"86. Drunken driving has become a menace to our society. Everyday drunken driving results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist, rain etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision."
4. Driving by a drunken person or by a person under the influence of drugs is made punishable under Section 185 of the M.V. Act. Section 185, which reads thus:
"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,-
2 (2012)8 SCC 450
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[(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 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."
5. Apart from this penal provision under the M.V. Act, depending upon the facts of the case, the offences punishable under Sections 279, 304 (Part-II) and 304A of the Indian Penal Code may be attracted.
6. On a plain reading of Section 185 of the M.V. Act, the offence of driving by a drunken person (popularly known as "Drunken Driving") is established when in his blood, alcohol exceeding 30 mg per 100 ml of blood is detected in his breath test. On this aspect, Sections 203 and 204 of the M.V. Act also relevant which read thus:-
::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::ash 5 pil-77.02 "203. Breath tests.-- [(1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorised in this behalf by that Department, may require any person driving or attempting to drive a 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 under section 185:
Provided that requirement for breath test shall be made (unless, it is made) as soon as reasonably practicable after the commission of such offence.] 2. If a motor vehicle is involved in an accident in a public place and a police officer in uniform has any reasonable cause to suspect that the person who was driving the motor vehicle at the time of the accident had alcohol in his blood or that he was driving under the influence of a drug referred to in section 185 he may require the person so driving the motor vehicle, to provide a specimen of his breath for a breath test--
(a) in the case of a person who is at a hospital as an indoor patient, at the hospital,
(b) in the case of any other person, either at or near the place where the requirement is made, or, if the police officer thinks fit, at a police station specified by the police officer:
Provided that a person shall not be required to provide such a specimen while at a hospital as an indoor patient if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of a specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::
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3. If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under sub-section (1) or sub-section (2) that the device by means of which the test has been carried out indicates the presence of alcohol in the person's blood, the police officer may arrest that person without warrant except while that person is at a hospital as an indoor patient.
4. If a person, required by a police officer under sub-section (1) or sub-section (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient.
5. A person arrested under this section shall while at a police station, be given an opportunity to provide a specimen of breath for a breath test there.
6. 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.
204. Laboratory test.-- (1) A person who has been arrested under section 203 may, while at a police station be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if,--
(a) it appears to the police officer that the device, by means of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 7 pil-77.02
(b) such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:
Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not.
2. A person while at a hospital as an indoor patient may be required by a police officer to provide at the hospital a specimen of his blood for a laboratory test--
(a) if it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or
(b) if the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police officer has reasonable cause to suspect him of having alcohol in his blood:
Provided that a person shall not be required to provide a specimen of his blood for a laboratory test under this sub-section if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.
3. The results of a laboratory test made in pursuance of this section shall be admissible in evidence.::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::
ash 8 pil-77.02 Explanation.--For the purposes of this section, "laboratory test" means the analysis of a specimen of blood made at a laboratory established, maintained or recognised by the Central Government or a State Government."
7. Under Section 203, if an officer in uniform or an officer of the Motor Vehicles Department as may be authorized in this behalf by the Motor Vehicles Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such officer has any reasonable cause to suspect him of having committed an offence under Section 185 of the M.V. Act. The proviso to Sub-section (1) thereto lays down that the breath test shall be taken as soon as reasonably practicable after commission of such offence. Sub-section (2) deals with a case where a motor vehicle is involved in an accident in a public place. Sub-section (2) is applicable when a police officer in uniform has any reasonable cause to suspect that the person who was driving the motor vehicle at the time of the accident had alcohol in his blood. In such a case, the police officer may require the person so driving the motor vehicle to provide a specimen of his breath for conducting a breath test. The Explanation defines breath tests. A breath test can be conducted only by means of a device of a type approved by the Central Government by a notification in the Official Gazette. Sub-
section (3) of Section 203 provides for the arrest of a person without ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 9 pil-77.02 warrant after the presence of alcohol is detected in such person's blood after a test of his breath.
8. Sub-section (1) of Section 204 of the M.V. Act lays down that a person who has been arrested under Section 203, while at the police station, may be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test. He can be subjected to such a blood test if it appears to the police officer that the device by means of which breath test was taken in relation to such person indicates the presence of alcohol in the blood of such person.
When any person who is given an opportunity to submit to a breath test refuses, omits or fails to do so, even he can be subjected to a blood test.
9. We must note here that the plain language of Section 185 of the M.V. Act makes it clear that an offence punishable under Section 185 of the M.V. Act can never be proved unless it is proved that the person concerned while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg per 100 ml. Therefore, the conduct of a proper breath test by a device approved by the Central Government, at the proper time, is of a great deal of importance. Only after the accused is arrested in accordance with the sub-sections (3) and (4) of Section 203 that the police officer can exercise the powers ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 10 pil-77.02 under Section 204 of the M.V. Act of requiring the accused to provide a specimen of his blood for laboratory test. Thus, a person cannot be sent for laboratory test unless he is arrested.
10. On the conduct of the laboratory test as provided under Section 204 of the M.V. Act, in the case of State Through P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda, Justice Radhakrishnan, in his separate Judgment in paragraph 82 has held thus:
"82. The accused, in this case, escaped from the scene of occurrence, therefore, he could not be subjected to breath analyser test instantaneously, or to take or provide specimen of his breath for a breath test or a specimen of his blood for a laboratory test. The cumulative effect of the provisions, referred to above, would indicate that the breath analyser test has a different purpose and object. The language of the above sections would indicate that the said test is required to be carried out only when the person is driving or attempting to drive the vehicle. The expressions "while driving" and "attempting to drive" in the above sections have a meaning "in praesenti". In such situations, the presence of alcohol in the blood has to be determined instantly so that the offender may be prosecuted for drunken driving. A breath analyser test is applied in such situations so that the alcohol content in the blood can be detected. The breath analyser test could not have been applied in the case on hand since the accused had escaped from the scene of the accident and there was no question of subjecting him to a breath analyser test instantaneously. All the same, the first accused was taken to AIIMS Hospital at 12.29 p.m. on 10-1-1999 when his blood sample was taken by Dr Madhulika Sharma, Senior Scientific Officer (PW 16). While testing the alcohol content in the ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 11 pil-77.02 blood, she noticed the presence of 0.115% weight/volume ethyl alcohol. The report exhibited as PW-16/A was duly proved by the doctor. Over and above, in her cross-examination she had explained that 0.115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds 30 mg per 100 ml of blood, the person is said to have committed the offence of drunken driving."
(emphasis added) Thus, in such a case where the breath test could not be conducted, the conduct of the blood test at the earliest assumes a great deal of importance. The Editor of the report (in Supreme Court Cases) has appended a note to the Head Notes of the said Judgment in the case of Sanjeev Nanda which reads thus:
"Ed.: In order to understand the import of Section 185 of the Motor vehicles Act, 1988, it is necessary to study the biological process which is set in motion when alcohol is consumed. Alcohol is a depressant. When alcohol goes into the stomach it mixes with blood and then through the circulatory system, it diffuses into the whole body. It primarily affects the central nervous system, particularly the brain (vide Richard Saferstein: Criminalistics, 10th Edn., p. 214). Biologically, drunkenness is a temporary impairment of the nervous system caused due to consumption of alcohol.
In order to determine how much a particular person is affected by alcohol consumption, the ideal situation is to examine his brain tissues but practically it is not feasible to interfere with such a sensitive organ of a living human being, simply to know the effect of alcohol. Scientists have therefore found an alternative method of detecting the effect of alcohol in the body through blood examination. There is a close correlation between the concentration of alcohol in the blood and in the brain. If the concentration of ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 12 pil-77.02 alcohol in the blood is detrmined, this will in turn determine the level up to which it has affected the nervous system.
Saferstein puts it like this: "From a medico-legal point of view, blood-alcohol levels have become the accepted standard for relating alcohol intake to its effect on the body." (p. 215) However, blood analysis requires expert medical examination which should be carried out in clinical conditions in a property equipped laboratory. This is therefore not a very handy method for traffic police who has to keep a watch over hundreds of drivers to know whether they are sober or drunken. The problem arises particularly when traffic on highways has to be watched at night. It is because of this difficulty, that portable devices called breath analysers or testers have been devised which can be used conveniently by the police. These devices estimate the presence of alcohol through alveolar breath but they by no means completely dispense with the requirement of blood breath but they by no means completely dispense with the requirement of blood examination in certain cases.
Quoting Saferstein again, results obtained through modern portable instruments like an alco-sensor or alcometer should be considered preliminary and non- evidential in nature. They establish only a probable cause for requiring an individual to submit to a more thorough breath or blood test (p.222).
Thus the position which emerges is that a portable breath analyser may be a useful device to conduct a preliminary test at the spot when a drunken driver is caught on the road but this is not the only test to determine the effect of alcohol. There are other sophisticated techniques like gas chromatography through which the presence of alcohol in blood can be detected with a high degree of accuracy. It may therefore be possible to book a drunken driver under Section 185 of the MV Act, 1988 on the basis of a test conducted on a portable device provided his only fault is that he was found drunken on the road but did not otherwise cause any harm. Mention of a breath analyser in Section 185, it is suggested, must be understood in this perspective. However, if a ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 13 pil-77.02 drunken driver has caused a serious accident or some other harm so as to be liable for punishment under the Penal Code, 1860. Section 185, it is submitted, does not exclude detailed medical examination which may be conducted under Section 53 of the Criminal Procedure Code, 1973.
Even otherwise, a breath analyser can be used when a drunken driver is caught at the spot. If he has fled from scene and is caught later on, say after a few hours, the prudent approach seems to be to subject him to blood analysis and other method tests. In such a situation, the task of prosecution becomes more onerous inasmuch as an additional fact has to be proved: that the offending driver had consumed liquor before the mishap took place. Authoritative works on Toxicology do not provide much material about the estimation of time when alcohol might have been consumed but still some useful guidelines are available. According to Safestein, "Depending on a combination of factors, maximum blood-alcohol concentration may not be reached until two or three hours have elapsed from the time of consumption. However, under normal social drinking conditions, it takes anywhere from 30 to 90 minutes from the time of the final drink until the absorption process is completed." (p.215) Once alcohol has been absorbed in the body, then the elimination process starts.
Elimination takes place through oxidation and excretion of alcohol. Again, according to Saferstein, "The elimination or burn off rate of alcohol varies in different individuals: 0.015 per cent w/v (weight per volume) per hour seems to be the average rate once the absorption process is complete. However, this figure is an average that varies by as much as 30% among individuals." (p.216) In Modi's Medical Jurisprudence and Toxicology (23rd Edn.), it is mentioned that alcohol in blood diminishes at the rate of 12-15 mg per hour (p.312). Considering that Saferstein qualifies his opinion both as to the time it takes for alcohol to be absorbed and with the possibility of a 30% variation as to the rate of elimination depending on the individual, it is submitted that the prosecution would have to produce some other evidence in addition to the medical ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 14 pil-77.02 evidence, relating to the time of consumption of alcohol."
(Emphasis added )
11. The Editor has observed that a portable breath analyser may be a useful device to conduct a preliminary test at the spot when a drunken driver is caught on the road but this is not the only test to determine the effect of alcohol. We find that neither the M.V.Act nor the Rules framed thereunder lay down the procedure to be followed while conducting breath test and blood test. In case of the Maharashtra Prohibition Act,1948 the Bombay Prohibition Medical Examination and Blood Test Rules, 1959 prescribe a detailed procedure for collection of blood samples and further steps to be taken thereafter. The State Government and the Central Government will have to look into this aspect. We must hasten to add that there is no illegality attached to conduct of breath and/or blood test merely because there are no Rules.
The necessity of having the Rules or Guidelines is to ensure that the Authorities do not commit any errors of which undue advantage taken by the accused. The time frame for taking various steps from the collection of blood samples will have to be fixed. There is no provision made to properly preserve the blood samples, to immediately dispatch the same for analysis within a specified time and to complete the analysis within a time schedule.
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12. The first direction will have to be issued to ascertain whether in the City of Mumbai and other Municipal Corporation Areas, the Police Department and the Regional Transport Offices have a sufficient number of breath test devices approved by the Central Government by a notification in the Official Gazette. The question is whether the State Government has provided adequate number of breath analyser devices in working condition to the police and to the authorised officers of the Motor Vehicles Department. Another connected issue is of regular maintenance and checking of the proper functioning of the devices. Moreover, it is necessary for the State to furnish the data of cases registered under Section 185 of the M.V.Act in Mumbai and other Municipal Corporation areas during last three years with special reference to the cases registered on 31 st December and 1st January every year. This data is necessary with a view to ascertain whether adequate number of devices are available to conduct the breath tests.
13. The second direction will be as regards action to be taken for framing Rules and/or laying down the guidelines in terms of paragraph above.
14. The third direction will be of making available the facility of collection of blood samples and prompt analysis thereof by providing ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 16 pil-77.02 mobile laboratories and by providing laboratories in all Government/Municipal hospitals including civil and cottage hospitals as well as in selected Primary Health Centres.
15. Another important issue is regarding the exercise of power of suspension of driving licence of a person against whom a case is registered under clause (a) of Section 185. Section 19 of the M.V.Act which reads thus:
"19. Power of licensing authority to disqualify from holding a driving licence or revoke such licence. -- (1) If a licensing authority is satisfied, after giving the holder of a driving licence an opportunity of being heard, that he--
(a) is a habitual criminal or a habitual drunkard; or
(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(c) is using or has used a motor vehicle in the commission of a cognizable offence; or
(d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to be attended with danger to the public; or
(e) has obtained any driving licence or a licence to drive a particular class or description of motor vehicle by fraud or misrepresentation; or
(f) has committed any such act which is likely to cause nuisance or danger to the public, as may be prescribed by the Central Government, having regard to the objects of this Act; or ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 17 pil-77.02
(g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-
section (3) of Section 22; or
(h) being a person under the age of eighteen years who has been granted a learner's licence or a driving licence with the consent in writing of the person having the care of the holder of the licence and has ceased to be in such care, it may, for reasons to be recorded in writing, make an order--
(i) disqualifying that person for a specified period for holding or obtaining any driving licence to ig drive all or any classes or descriptions of vehicles specified in the licence; or
(ii) revoke any such licence.
(2) Where an order under sub-section (1) is made, the holder of a driving licence shall forthwith surrender his driving licence to the licensing authority making the order, if the driving licence has not already been surrendered, and the licensing authority shall,--
(a) if the driving licence is a driving licence issued under this Act, keep it until the disqualification has expired or has been removed; or
(b) if it is not a driving licence issued under this Act, endorse the disqualification upon it and send it to the licensing authority by which it was issued; or
(c) in the case of revocation of any licence, endorse the revocation upon it and if it is not the authority which issued the same, intimate the fact of revocation to the authority which issued that licence:
Provided that where the driving licence of a person authorises him to drive more than one class or description of motor vehicles and the order, made under sub-section (1), disqualifies him from driving any specified class or description of motor vehicles, ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 18 pil-77.02 the licensing authority shall endorse the disqualification upon the driving licence and return the same to the holder.
(3) Any person aggrieved by an order made by a licensing authority under sub-section (1) may, within thirty days of the receipt of the order, appeal to the prescribed authority, and such appellate authority shall give notice to the licensing authority and hear either party if so required by that party and may pass such order as it thinks fit and an order passed by any such appellate authority shall be final."
(underlines supplied)
16. The Central Government has exercised the power under clause (f) of sub-section 1 of Section 19. Rule 21 of the Central Motor Vehicles Rules, 1989 (for short "the Central Rules) provides thus:
"21. Powers of licensing authority to disqualify.--
For the purpose of clause ( f ) of sub-section (1) of Section 19, the commission of the following acts by holder of a driving licence shall constitute nuisance or danger to the public, namely:--
(1) Theft of motor vehicle.
(2) Assault on passengers.
(3) Theft of personal effects of passengers.
(4) Theft of goods carried in goods carriages.
(5) Transport of goods prohibited under any law.
2[(6) Driver while driving a transport vehicle, engages himself in activity which is likely to disturb his concentration.] (7) Abduction of passengers.
(8) Carrying overload in goods carriages. (9) Driving at speed exceeding the specified limit. (10) Carrying persons in goods carriage, either inside the driver's cabin in excess of its capacity or on the vehicle, whether for hire or not.::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::
ash 19 pil-77.02 (11) Failing to comply with the provisions of Section 134. (12) Failure to stop when signalled to do so by any person authorised to do so.
(13) Misbehaviour with and showing discourtesy to passengers, intimidating passengers or consignors and consignees of goods.
(14) Smoking while driving public service vehicles. (15) Abandoning vehicle in a public place causing inconvenience to other road users or to passengers in the vehicle.
(16) Driving vehicle while under the influence of drink or drugs.
(17) Interfering with any person mounting or preparing to mount upon any other vehicle.
(18) Allowing any person to sit or placing things in such a way as to impede the driver from having a clear vision of the road or proper control of the vehicle.
(19) Not stopping a stage carriage at approved stopping places for a sufficient period of time in a safe and convenient position upon demand or signal of the conductor or any passenger desiring to alight from the vehicle and unless there is no room in the vehicle, upon demand or signal of any person desiring to become a passenger.
(20) Loitering or unduly delaying any journey and not proceeding to the destination as near as may be in accordance with the time-table pertaining to the vehicle, or, where there is no such time- table, with all reasonable despatch. (21) Not driving a contract carriage, in the absence of a reasonable cause, to the destination named by the hirer by the shortest route.
(22) The driver of a motor cab not accepting the first offer of hire which may be made to him irrespective of the length of the journey for which such offer is made.::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::
ash 20 pil-77.02 (23) The driver of a motor cab demanding or extracting any fare in excess to that to which he is legally entitled or refusing to ply motor cab.
3[(24) Abandoning a transport vehicle as a mark of protest or agitation of any kind or strike in a public place or in any other place in a manner causing obstructions or inconvenience to the public or passengers or other users of such places.] 4[(25) Using mobile phone while driving a vehicle.]"
(underlines supplied) Clause (16) is relevant for our purpose. On a conjoint reading of clause (f) of sub-section 1 of Section 19 of the M.V.Act with clause (16) of Rule 21 of the Central Rules, we find that on registration of an offence under Section 185, the power to suspend the driving licence under Section 19 can be exercised by the Licencing Authority. The Licencing Authorities will have to invoke the said power in the cases of violation of clause (a) of Section 185. The exercise of the said power may have the desired deterrent effect. The State Government will have to issue appropriate directions to ensure that there is a proper coordination between the Police and the Licencing Authorities so that an action of suspension of the driving licence is initiated immediately after the offence is committed. The State Government while filing an affidavit shall disclose the details of the number of cases in which action of suspension of licence has been taken during last three years in Mumbai and other Municipal Corporation areas in the cases under Clause (a) of Section 185.::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::
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17. At this stage, we must express our grave concern about the growing problem of driving while under the influence of alcohol. As we have noted, the editorial comment in the Supreme Court Cases report clearly demonstrates the likely impairment of cognitive functions essential to driving a vehicle caused by an intake of alcohol. While Section 185 prescribes the so-called 'limits', we feel duty-bound to observe that these limits seem to us to be theoretical. The effect of alcohol on an individual can vary widely. It may be a function of a multitude of factors, including body type, the amount of food taken before or after alcohol consumption, a genetic disposition to high or low tolerance for alcohol, how fast the alcohol is consumed and even external factors. These effects are well studied, but they cannot be viewed in isolation, nor is it reasonable, in our view, to adopt any particular norm that may be applied in other jurisdictions overseas.
Regard must necessarily be had to the conditions in our country and in our cities: the overcrowded roads, pedestrian movement on roads, the absence of sufficient sidewalks or pavements, a general indiscipline and indifference to traffic regulations, and the fact, too, that our roads and such few sidewalks as exist are used by hawkers during the day and by the poorest of the poor at night. This makes drunken driving all the more dangerous, and we do not think it is possible to ignore these conditions, especially given our experience with fatalities caused to third parties by reported incidents of drunken driving. It is not possible, ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 22 pil-77.02 in our view, to countenance an argument that any person has a fundamental right to drink, let alone to drink any amount and then get behind the wheel of a motor car or onto a two-wheeler. Even the most minute impairment caused by alcohol intake might have the most disastrous consequences.
18. We note with a great deal of alarm and dismay that on 31 st December 2015/1st January 2016, Mumbai alone saw as many as 705 drunk driving cases, as reported by the Times of India, an increase of 35% from the previous year 31st December 2014. This Court has had occasion in the past to permit various establishments such as bars and restaurants to remain open till 5:00 am on New Year's Eve, and this has now been permitted by the State Government as well. But this demands, in turn, greater and not lesser responsibility on the part of citizens. Further, in the major metros at any rate there are now several viable alternatives in the form of not only public transport but also drivers whose services can be hired for the purpose. We note, too, that in at least one incident, there were some police officers who lost their lives.
19. We find nothing to suggest that some quantity of alcohol in the blood can be considered 'safe'; at the highest, a specified quantity is a generalized norm, one that does not allow for the very wide variations ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 23 pil-77.02 that may result from one person to the next. There is, in fact, no reason why any person who has had any amount to drink should be permitted to drive at all. Given the alternatives available, and having regard to the manifest risks especially to third parties, we would strenuously urge the adoption by the Central Government of a zero-tolerance policy toward drunk driving. We see no reason why the police should be burdened with having to prove whether or not a person is above or below any particular limit; the mere presence of alcohol in the blood should, in our view, be sufficient to disentitle a person from driving. In itself, this would facilitate the work of the police and go a long way to ensuring safety on our roads, apart from lessening the forensic burden on enforcement agencies.
20. Section 185 is placed in Chapter 13 of the M.V. Act. This Chapter does not contain any provision by which the State Government can make appropriate rules. We would urge the Central Government to consider a suitable amendment in this regard, either by allowing various State Governments to prescribe their own norms (and we would urge the Maharashtra Government to adopt a zero tolerance norm), or to prescribe such a zero-tolerance norm in Section 185 itself. The time has now come for just such a measure. Too many lives have already been lost to this lethal cocktail of internal consumption and internal combustion.
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21. Detailed directions will be issued after considering the response of both the State and the Central Government. For the time being, we issue the following interim directions :
(a) The State Government shall file an affidavit setting out whether adequate number of devices for conducting breath test as approved by the Central ig Government are available in Mumbai as well as in other Municipal Corporation Areas. The affidavit to contain the data of the devices provided to the Police as well as to the authorised Officers of the Motor transport Department which are in working condition today. The affidavit shall also set out the details of the arrangements made for the regular maintenance and checking of the devices used for conducting the breath test ;
(b) The State shall furnish the data of the cases registered under Section 185 of the M.V.Act in Mumbai and other Municipal Corporation areas during last three years (2013,2014 and 2015) with special reference to the cases registered on 31 st ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 25 pil-77.02 December and 1st January every year. The State Government shall also provide details of the action of suspension of driving licences taken in such cases during the aforesaid period of three years in Mumbai and other Municipal Corporation areas;
(c) The State Government as well as the Central Government shall file an affidavit stating whether ig they intend to frame Rules and/Regulations and/or guidelines for the conduct of breath test, for collection of blood samples and for taking further steps for analysis of the blood samples;
(d) The State Government shall also state whether it intends to set up Forensic Laboratories at every Government hospital including the District/Civil/Cottage hospitals as well as selected Primary Health Centres near major State and National Highways for testing of blood samples in the cases under Section 185 of the M.V.Act. The State Government shall also state whether it intends to provide mobile Forensic Laboratories;::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 :::
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(e) The State Government shall issue appropriate
directions to ensure that an action is initiated by the Licencing Authorities in the State of the suspension of the driving licenses immediately on the registration of cases under clause (a) of Section 185 of the M.V.Act. The State Government shall also issue appropriate directions to establish a proper ig coordination between the Police and the Licencing Authorities to ensure that action is immediately initiated of suspension of licences in the aforesaid cases;
(f) We direct the State and Central Government to file comprehensive affidavits in terms of the above directions within a period of three weeks from today so that the appropriate guidelines can be issued by this Court;
(g) We direct the State and the Central Government to file affidavits dealing with the observations made by this Court in paragraphs 17 to 20 above. For filing affidavits dealing with the said observations, we ::: Uploaded on - 07/01/2016 ::: Downloaded on - 08/01/2016 00:02:13 ::: ash 27 pil-77.02 grant longer time of six weeks to both the State and the Central Government;
(h) Place the Petition under the caption of "Directions"
on 9th February 2016 reporting compliance and for issuing further directions;
( G.S. PATEL, J ) ( A.S. OKA, J )
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