Delhi District Court
Vehicle No. : Dl1Va2257 vs Monu on 10 February, 2015
IN THE COURT OF MS. SONAM SINGH, METROPOLITAN
MAGISTRATE (TRAFFIC), SOUTH DISTRICT, SAKET COURT,
NEW DELHI
In the matter of:
Vehicle No. : DL1VA2257
Challan No. : 672025373814
Circle : HKC
U/S. : Section 185, 3/181, 56/192, 66.1/192A, 146/196, and 39/192 and
5/180 of Motor Vehicle Act, 1988 (in short "M.V. Act"), Section
115/190(2) of Central Motor Vehicle Rules, 1989 (in short
"CMVR") r/w M.V. Act and Rule 32/177 of Rules of the Road
Regulations, 1989 (in short "RRR") r/w M.V. Act.
State
Versus
Monu
S/o Sh. Rajender Singh Saini
R/o R18, Khirki Extension,
Malviya Nagar, New Delhi
Date of Filing the Challan :29.10.2014
Arguments Heard on :19.01.2015
Date of Judgment :10.02.2015
Plea of the accused :Not Guilty
Final Order :Acquitted U/s 3/181, 56/192, 66.1/192A,
146/196, and 39/192 of Motor Vehicle Act,
115/190(2) of Central Motor Vehicle Rules,
and Rule 32/177 of Rules of the Road
Regulations.
Convicted U/s 185 of M.V. Act.
Vehicle No. : DL1VA2257 Challan No. : 6720253714
Present: Ld. APP for the State.
Accused in person alongwith Ld. Counsel Sh. S.K. Srivastava.
J U D G M E N T
Brief reasons for the decision :
1. Brief facts of the case as per the Prosecution Vide this judgment, I shall dispose of the present challan filed by the prosecution under Section 185, 3/181, 56/192, 66.1/192A, 146/196, 39/192 and 5/180 of Motor Vehicle Act, 1988 (in short "M.V. Act"), Section 115/190(2) of Central Motor Vehicle Rules, 1989 (in short "CMVR") r/w M.V. Act. and Rule 32/177 of Rules of the Road Regulations, 1989 (in short "RRR") r/w M.V. Act.
The facts in brief, as per the prosecution are that on 23.10.2014 at about 15:55 Hrs., the accused, namely, Monu was driving one vehicle (RTV) bearing No. DL1VA2257 at Outer Ring Road, Panchsheel Enclave. He was driving the vehicle from Chirag Delhi flyover side and going towards Jia Sarai Pedestrian Signal side. The traffic police stopped him for the purposes of checking. He was examined on an alcometre device and on such examination he was found under the influence of alcohol. As per the breath analysis report exhibited as Ex.PW2/A, the alcohol content found in his blood on such alcometre examination was 440mg/100ml, which is beyond the permissible limit of 30 mg/100ml under Section 185 M.V. Act. The accused also could not produce a valid Driving Licence, Registration Certificate, Fitness Certificate, Insurance Certificate, Permit and Pollution under Control Certificate (PUC) of the vehicle. Therefore, the Vehicle No. : DL1VA2257 Challan No. : 6720253714 accused driver and accused owner were challaned for the abovementioned violations vide challans bearing No.672025373714 and No.672025373714, which are exhibited as Ex.PW1/A and Ex.PW1/B respectively.
2. Cognizance by the Court, Admission to bail and Framing of Notice Subsequent to filing of the challan before the court, cognizance of the offence was taken by this court on 29.10.2014 and since the offences were bailable, the accused driver was admitted to bail on furnishing of bail bond and surety bond in a sum of Rs.10,000/. However, the accused owner submitted before the court that he wishes to plead guilty for all the offences levelled against him. On 05.12.2014, Notice of accusation was served upon the accused driver U/s 251 Code of Criminal Procedure, 1908 (in short "CrPC") and it was read over and explained to the Accused in vernacular, to which he pleaded not guilty and claimed trial.
3. Prosecution Evidence
(i) Examination of Witnesses In order to prove and substantiate its case, the prosecution examined two (2) witnesses, namely:
Sr. No. Designation and Name of the Witness Role in the present case
1. PW1 Const. Surender Witness to the present challan
2. PW2 ASI Ram Avtar Challaning Officer Vehicle No. : DL1VA2257 Challan No. : 6720253714
(ii) Documents on record PW1 and PW2 also proved the challans on record, which are exhibited as Ex.PW1/A, Ex.PW1/B ,the offence seizure slip, which is exhibited as Ex.
PW1/C and the alcometer breath test report/ slip, which is exhibited as Ex PW2/A.
(iii) Brief Scrutiny of the Evidence
(a) PW1 Const. Surender in his Examinationinchief identified the accused in the court. He deposed that on 23.10.2014 at around 04.00 PM, he along with ZO ASI Ram Avtar, the Challaning Officer were preparing challans. Further, they noticed that a vehicle was coming from Chirag Delhi side and plying towards IIT flyover. He further deposed that the Challaning Officer asked him to stop the offending vehicle as well as the accused. He further stated that when the Challaning Officer checked the accused, it was found that the accused was drunk. He also stated that subsequently, the Challaning Ofiicer called for the alcometer device. Thereupon, HC Suman Pal got the device on the spot. He further deposed that the challans Ex. PW1/A and Ex.PW1/B bearing his signatures at point "X" and alcometer breath test report were prepared in front of him at Sadhna Enclave bus stop challan by the Challaning Officer. Further, PW1 testified that the accused did not have valid documents, namely, a valid driving licence, RC, Permit, Fitness Certificate and Insurance with him and the accused misbehaved with the traffic police personnel present at the spot.
Vehicle No. : DL1VA2257 Challan No. : 6720253714 In his CrossExamination, PW1 deposed that his duty timings are 09.00 a.m. to 09.00 p.m. PW1 deposed that on the day of incident, he and ZO were present on the spot and were preparing challans from 2.00 p.m. onwards and they prepared around 45 challans before preparation of the present challan. PW1 further deposed that they had not prepared any other challan U/s 185 of M.V.Act for drunken driving before the preparation of the present challan and the ZO had noticed that the accused driver was in drunken condition. He also deposed that the ZO had checked the documents of the accused driver and the alcometer device was not present on the spot but it was brought to the spot in 10 minutes from the Hauz Khas circle by HC Suman Pal. PW1 further testified that Panchsheel Enclave and Sadhna Enclave are two different places and again said that he is not very sure about the colonies being different as he had been posted recently at the spot i.e. two months time ago. PW1 negated the suggestions of Ld. Defence Counsel that he was deposing falsely and that he was not present on the spot. He also negated the suggestion that no test was conducted by alcometer device in his presence. He admitted that his signatures were not present on the breath test report but voluntarily stated that the Challaning Officer's signatures were present on the breath test report. He further deposed that the offending vehicle was carrying around 78 passengers but ZO did not record any statement of passenger as the passengers left, as soon as the vehicle stopped. He further deposed that the challan did not specify that passengers were sitting in the vehicle. PW1 deposed that the reading of the alcometere device, as per the breath test report was over 400 mg/100ml and he did not remember the exact measurement, as it has been two Vehicle No. : DL1VA2257 Challan No. : 6720253714 months since the incident. He also deposed that the challan did not specify that the vehicle was been driven in a zigzag manner. He further testified that he did not remember whether the vehicle was being drive in a dangerous manner . PW1 further deposed that the breath test report ship was not provided to the accused and voluntarily stated that the same is not provided to the accused. He also deposed that the offending vehicle was a RTV belonging to a school.
(b) PW2 ASI Ram Avtar, Challaning officer in his ExaminationInChief, deposed that on 23.10.2014, at about 3.45 p.m., he was preparing challans alongwith Const. Surender. He further stated that one RTV Bearing No. DL1VA2257 was plying from Chirag Delhi side towards Hauz Khas metro. PW2 deposed that he stopped the vehicle and there were 56 passengers sitting in the vehicle. PW2 further deposed that he made the accused come out of the vehicle and his mouth smelled of alcohol. PW2 further deposed that he called at Hauz Khas circle and HC Suman Singh got the alcometer device to the spot. Further, he stated that the accused was checked and the alcohol content was above 275 ml/100mg as per the breath test report but did not remember the exact quantity. He further identified the Accused in the court. PW2 further deposed that the accused not able to produce any documents, i.e, a valid driving license, permit, insurance, fitness, RC and pollution certificate. Therefore, PW2 stated that he challaned accused driver and accused owner for the abovementioned violations which are exhibited as Ex.PW1/A, Ex.PW1/B. He also stated that he prepared Ex.PW1/C and Ex.PW2/A. Vehicle No. : DL1VA2257 Challan No. : 6720253714 In his CrossExamination, PW2 deposed that on the day of offence, he alongwith Const. Surender were present on the spot and were standing a little before Panchsheel Enclave bus stand towards Hauz Khas. They were standing on the road which was going from Chirag Delhi towards Hauz Khas. PW2 deposed that they were doing routine traffic checking and not on a special drunken driving drive. PW2 further stated that they stopped the accused routinely for checking purposes. Further he deposed that only the vehicle of accused was stopped at that moment and there were other vehicles, which were also stopped for the purposes of checking and challaned accordingly. PW2 deposed that he did not remember as to how many challans were prepared before the present challan and they were preparing challans from 2.00 pm in the afternoon onwards. He further deposed that they together stopped the Accused's vehicle . PW2 also stated that he smelt the mouth of accused, which smelt of alcohol. He also stated that the accused was shaking but did not mention the same in the challan. PW2 further deposed that there is no allegation regarding driving dangerously or driving in a zigzag manner. He also deposed that he had not mentioned in the challan regarding the passengers who were sitting alongwith the accused in the offending vehicle. PW2 further deposed that he got the test conducted from the alcometer device and there is no fitness certificate of the alcometer device attached with the challan from the Centraal Government which certifies that the alcometer device is an approved one. PW2 negated the suggestion of Ld. Defence Counsel that the alcometer device which was used was faulty. He further negated the suggestion of Ld. Defence Counsel that the signatures on the challan were not of the accused. Further, he Vehicle No. : DL1VA2257 Challan No. : 6720253714 negated the suggestion of Ld. Defence Counsel that the breath test analysis report attached with the challan is of someone else and not of the accused. PW2 deposed that a copy of breath test analysis report slip was provided to the accused and the accused was made to sign on the report. PW2 further deposed that the breath test analysis report was filled in by the Constable. He also negated the suggestion of Ld. Defence Counsel that no test from the alcometer device was conducted. PW2 also deposed that HC Suman Singh was not made a witness to the present challan and the accused was arrested U/s 202 of M.V. Act. He deposed that no medical test was conducted after the arrest and the passengers sitting inside the vehicle were not made witness. PW2 also deposed that Sadhna Enclave and Panchsheel are colonies opposite to each other. PW2 negated the suggestion of Ld. Defence Counsel that no breath test was conducted on the spot and he is deposing falsely.
4. Statement of Accused U/s 313 CrPC After the completion of Prosecution Evidence, on 15/01/15 the statement of accused driver Monu was recorded U/s 313 CrPC. During the examination of accused U/s 313 CrPC, all the incriminating evidence appearing against the accused was put to him and he was given an opportunity to give an explanation regarding the same. The accused in reply to his examination accepted the fact that he was driving the offending vehicle on the day of incident at Outer Ring road, Panchsheel Enclave. He further stated that he was not examined on any alcometer device and he had produced the documents to show the traffic police. He further denied that he misbehaved with the traffic police personnel present on the spot. In Vehicle No. : DL1VA2257 Challan No. : 6720253714 short, in his statement, the accused denied to have committed any of the offences for which he was challaned.
5. Defence Evidence After examination of accused/driver U/s 313 CrPC, he submitted that he wanted to lead Defence Evidence. On 19/01/2015, DW1 Sh. Monu appeared and produced valid Fitness Certificate, Insurance Certificate, Permit, Pollution Certificate and Driving Licence (OSR). Thereafter, the matter was fixed for hearing of final arguments.
Further, Ld. Counsel submitted that the accused owner wanted to plead guilty for the offences levelled against him. Plea was voluntary so the same was accepted. Accused owner was admonished in the interest of justice, for all offences levelled against him.
6. Final Arguments Thereafter, final arguments addressed by both the parties were heard on 19.01.2015 as mentioned below:
(i) Arguments on behalf of Prosecution (a) Consistent testimonies of PWs
The Ld. APP for the State has argued that both prosecution witnesses have supported the case of the prosecution and deposed on the lines of challan. It was also pointed out that both the challaning officer PW2 and the witness to the Vehicle No. : DL1VA2257 Challan No. : 6720253714 challan, namely, PW1 correctly identified the accused in the court and the accused also himself admitted to driving the offending vehicle in his statement U/s 313 CrPC. Further, the prosecution witnesses have exhibited and proved the challan document and alcometer slip issued by them to the accused. He also argued that the witnesses have remained consistent in their depositions regarding the act of drunken driving by the accused and there are no contradictions in their evidence.
(b) Documents do not lie Ld. APP also took up the argument that witnesses may lie but documents will not and the act of drunken driving by the accused is well manifested in the alcometer slip exhibited as PW2/A. He also stated that if the accused felt that the alcometer device was faulty then the burden was on him to prove so and the prosecution was not under a burden to show the fitness certificate of the device.
(c) No Previous enmity or motive Finally, he stated that nothing has emerged from the crossexamination of the said prosecution witnesses, which may suggest that their evidence is tainted in any manner, in the sense that there is any motive due to previous enmity or allegations of corruption Hence, he argued that the prosecution has been able to prove the case against the accused beyond reasonable doubt and he is guilty for drunken driving under section 185 of M.V. Act.
Vehicle No. : DL1VA2257 Challan No. : 6720253714 (ii) Arguments on behalf of Defence (a) Contradictions in testimonies of PWs
The Ld. Defence Counsel for the Accused submitted that the PWs have contradicted themselves in material particulars of the challans and thus their testimonies are unbelievable. He stated that PW1 had testified that they were standing at Sadhna Enclave Bus stop, whereas PW2 had deposed that they were standing a little before Pancsheel Enclave Bus Stand. Thus, the Ld. Counsel submitted that both PWs had contradicted each other with respect to the place of occurrence of the offence. The ld. Counsel also stated that PWs had contradicted with respect to the alcohol content, PW1 had stated that alcohol content was above 400mg/100ml, while on the other hand, PW2 had stated it to be above 275mg/100ml. Lastly, both the PWs had stated that one HC had got the alcometer device to the spot but both had taken different names, PW1 had said HC Suman "PAL" while PW2 had said it to be HC Suman "SINGH". Hence, the prosecution witnesses' testimonies were not trustworthy.
(b) Nonjoinder of independent witness The Ld. Defence Counsel also submitted that the challaning officer deliberately did not mention in the challan, regarding the passengers sitting inside the vehicle. He argued that passengers should have been made witnesses to the present challan and this omission further raises suspicion on the prosecution story.
Vehicle No. : DL1VA2257 Challan No. : 6720253714 (c) Faulty alcometer device, unreliable breath analysis report and certificate of fitness not attached with the challan
The ld. Counsel further vehemently argued that the breath analysis report was unreliable. He stated that the fitness certificate as per explanation to Section 203 M.V. Act specifically stated that a certificate by central government has to be produced. Thus, the absence of the certificate makes the result by alcometer doubtful. Secondly, the breath analysis report has been admittedly been filled in by PW1 and not PW2, which makes the result of the test further unreliable.
(d) Requisite of other formalities The Ld. Counsel also stated that the accused was not provided the copy of the breath analysis report, which also makes it a grave error.
Thus, the prosecution has failed in proving the guilt of the accused beyond reasonable doubt.
Perusal of Record and Right of Hearing Given To Both The Parties.
7. I have heard both the sides and have perused the records of the case. It is well settled that the onus to prove its case in criminal trial is always on the prosecution and the said onus is to be discharged by leading evidence beyond reasonable doubts. In case, there are any doubts in the prosecution story, its benefit has to go to the accused.
8. Settled law and legal propositions Before dealing with appreciation of facts, evidence and the arguments of Vehicle No. : DL1VA2257 Challan No. : 6720253714 both the sides, it would be pertinent to lay down the law regarding the offence of drunken driving U/s 185 M.V. Act
(i) Section 185 M.V. Act Drunken Driving ● In order to prove an offence U/s 185 of M. V. Act all the following essentials have to be established by the prosecution:
(a) Accused should be driving or attempting to drive a motor vehicle in a public place;
(b) He must be tested by a breath analyzer; and
(c) After breath analyzer test, the accused is found to have more than 30
mg of alcohol per 100 ml of blood.
• Additionally, it is clearly stated in section 203 (6) of M. V. Act that the blood alcohol analysis report is admissible in evidence.
9. Appreciation of facts, evidence, and arguments on both sides
(i) Section 185 Drunken Driving
(a) With respect to the first ingredient that the accused should be proved to have been driving or attempting to drive the motor vehicle, several contradictions have been pointed out by the Ld. Counsel for the defence but the accused has clearly in his statement U/s 313 stated that he was driving the vehicle on the day of the incident. Even the prosecution witnesses have correctly identified the accused before the court. Thus, the first essential of Section 185 stands satisfied. As per Section 58 of Indian Evidence Act, which states that facts admitted need Vehicle No. : DL1VA2257 Challan No. : 6720253714 not be proved. Thus, the argument of the Ld. Counsel for the defence regarding contradictions with respect to place of occurrence does not stand.
(b) As far as the second ingredient is concerned regarding checking by a breath analyzer, the accused has stated in his statement U/s 313 that he was never examined by any alcometre device and it was never inserted in his mouth. However, the PWs have deposed on the same lines of the challan and even stated the name of the HC who had brought the alcometer device to the spot. The argument by the Ld. Counsel regarding his name being "HC Suman Pal" or "HC Suman Singh" do not stand, as it is a minor discrepancy. Secondly, as regards the second defence that breath analyzer was defective is concerned. This defence is not sustainable, as the burden of proof was on the defence to show that the device was defective. It is always a presumption that public officers are performing their duties diligently and honestly with appropriate equipment, the burden to prove the reverse was on the defence. Thus, this argument being vague and bereft of proof cannot stand. Explanation to Section 203 M.V. Act ,as pressed by the ld. Counsel for accused, no where prescribes that the fitness certificate of the device has to be brought to the court and this argument is also unsustainable.
(c) Let us examine the third ingredient of the offence. The quantity of alcohol content accused as per Ex PW2/A is 440 mg/100 ml, which is beyond the permissible limit of 30mg/100ml. The same stands proved by PW2, the challaning officer who conducted the alcohol test on the accused. In this context, the ld. Counsel for the accused emphasized on the testimony of PW2 who had stated that the particulars of the breath test report were filled in by PW1. However, this is a Vehicle No. : DL1VA2257 Challan No. : 6720253714 mere procedural irregularity, which bears no merit. Further, the contradiction in testimonies of PWs, with respect to alcohol quantity also does not stand. With passage of time, human memory is likely to fade. Further, in this case the contradiction is not so major so as to throw out the case of the prosection. Additionally, documentary evidence, i.e . breath analyzer report has been proved by PW2 .Section 203 (6) of M. V. Act clearly states that the blood alcohol analysis report is admissible in evidence.
With respect to the defence raised by the Ld. counsel regarding nonsupply of breath analyzer report to accused is considered. The same does not affect the merits of the case, being a mere procedural irregularity. Additionally, the argument regarding nonjoinder of independent witnesses is unsustainable in the eyes of law. It is a settled position of law that the testimony of prosecution witnesses/police officials cannot be completely ignored simply on the ground that no independent witness has been joined. In case, where independent witness is not joined, then evidence on file is to be scrutinized with great caution and mere non joining of independents witnesses is not fatal. In the case at hand, the testimony of prosecution witnesses is clear, convincing, reliable and inspires confidence of the court and all the ingredients necessary of prove an offence u/s 185 of M. V. Act has been proved beyond reasonable doubt.
10. Hence, after carefully considering all the material on the record, the evidence by all the prosecution witnesses, the statement of the accused and hearing the arguments on both the sides, the court is of the opinion that the Vehicle No. : DL1VA2257 Challan No. : 6720253714 Prosecution has proved its case against the accused Monu beyond reasonable doubt u/s 185 of M. V. Act. Therefore accused Monu is convicted for the offence punishable u/s 185 of M. V. Act.
Further, with respect to allegations U/s 3/181, 56/192, 66.1/192A, 146/196 and 39/192 of M.V. Act, Section 115/190(2) CMVR r/w M.V. Act and Rule 32/177 of RRR r/w M.V. Act, since the accused has already placed on record a valid Fitness Certificate, Insurance Certificate, Permit, Pollution Certificate and Driving Licence , copies of which are exhibited as Ex.DW1/A , Ex.DW1/B, Ex.DW1/C Ex.DW1/D, and Ex.DW1/E, he is acquitted of the same.
Copy of this judgment be given free of cost to the accused. Pronounced in the open court. Let accused be heard on the point of sentence on 11.02.2015 at 2.00 p.m. Announced in the open court (Sonam Singh) on 10th day of February, 2015 Metropolitan Magistrate, Traffic, South District, Saket, New Delhi.
Vehicle No. : DL1VA2257 Challan No. : 6720253714
ORDER ON SENTENCE
Heard on the quantum of sentence. The Ld. APP for the state has argued that the accused driver has been convicted for the offence U/s 185 of the motor vehicle Act, 1988 which is a serious offence and it also puts the life of other road users in risk and, therefore, the accused should be strictly punished for the offence committed by him.
On the other hand the Ld. Defence counsel for the accused has submitted that the accused driver is a very poor person and is not a habitual offender. It is his first offence. Thus, prayed that a lenient view may be taken.
This court is of the opinion that since the accused was driving a commercial RTV in a drunken condition with alcohol content of 440 mg/100ml, lenient view would be travesty of justice. Driving vehicles in a drunken condition jeopardises the lives of others and puts their lives at stake. Thus, the accused is sentenced to four day's Simple Imprisonment and fine of Rs.1,000/ and one day additional Simple Imprisonment in default of payment of fine.
Documents seized, if any, be released to the rightful party as per law. Vehicle be released to the rightful owner as per law.
(Sonam Singh)
M.M.(Traffic), South,
Saket Court, New Delhi
11.02.2015
Vehicle No. : DL1VA2257 Challan No. : 6720253714
At this stage, Ld. Counsel for accused driver has moved an application U/s 389 CrPC for suspension of sentence. Heard. Application is allowed subject to furnishing of Bail Bond in a sum of Rs.15,000/ with one surety in the like amount. Bail bond and surety bond furnished and accepted till the period of appeal allowed as per law. Sh. Mukesh Kumar, has stood as surety for accused. Documents attached with the challans be kept on record as case property.
Put up for further proceedings on 16.03.2015.
(Sonam Singh)
M.M.(Traffic), South,
Saket Court, New Delhi
11.02.2015
Vehicle No. : DL1VA2257 Challan No. : 6720253714