Delhi District Court
Rajavalse vs . State 1999 Cr. Lj. Delivered By ... on 24 June, 2011
In the Court of Sh. Ashok Kumar, Metropolitan Magistrate03
(Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL 1 SR 1037
Challan No.: 709517
Circle :VVC
U/S :185, 3/181, 146/196
RRR 32/177, 99.1/177
State
Versus
Rajender
Date of Filing the Challan :14.02.2011
Arguments Heard on :04.04.2011
Date of Judgment :24.06.2011
Plea of the accused :Not Guilty
Final Order :Convicted
J U D G M E N T
1. By this judgment, I will dispose off the present traffic challan filed by the prosecution on 14.02.2011which challan was done on 13.02.2011 at about 10.45 pm at place Ulanbatar Marg near NSG Red Light, Dwarka Road, New Delhi. This challan has been made under sections 185 (drunken driving), section 3 r/w 181 (driving without licence), 146/196 (driving without insurance), 32 (Rules of Road Regulations) (hereinafter called as RRR) read with 177 and 99.1 (Central Motor Vehicle Rules) (hereinafter called as CMVR). Rule 32 deals with requirement of various documents while driving the vehicle including RC. Rule 99.1 deals with DL 1 SR 1037 1 nonproduction of Pollution under control Certificate (PUCC) while driving the vehicle. All the above said provisions except as above said belong to MV Act.
2. Notice was framed under all the above said sections under section 251 Cr. PC as accused did not plead guilty and claimed trial. Notice was also framed under Rule 115 CMVR read with section 190 instead of Rule 99.1/177 of MV Act as it deals with the same act of driving the vehicle without PUCC but provide for enhanced punishment. Bail was granted to him on furnishing of bail bond as the said offences are bailable. Vehicle was released on superdaginama. The facts of the case as appearing from the evidence of PW1 Ct. Sushil Kumar, PW2 Challaning Officer SI Suresh Chan and PW3 SI Dharambeer, Ex. PW1/A which is the challan, Ex. PW1/B which is the alcometer slip and Ex. PW2/A which is the OSS form (Offence Seizure Slip) issued under Rule 123 of Delhi Motor Vehicle Rules, 1993 are as follows. On 13.02.2011, the above said officials were posted at Ulanbatar Marg, NSG Light, Dwarka Road, New Delhi. At about 10.45 pm, the accused identified by them in the court came on motorcycle from the side of NH8, Mahipal Pur, Sanjay Point and was going towards Dwarka. He was stopped as he appeared to be driving the above said vehicle in an intoxicated state. He was stopped and checked on alcometer. On taking sample of his breath, the content of alcohol reflected by the breath analyser/alcometer was found to be 316mg in 100 ml of blood. The accused was also checked for documents and he was found driving the above said vehicle without driving licence (DL), registration certificate (RC), insurance and PUCC. Hence, he was challaned vide Ex. PW1/A. OSS form Ex. PW2/A was issued as a record that his vehicle is being impounded in the pit. The said prosecution witnesses were then crossexamined and then the statement of accused was recorded under section 313 Cr. PC. The accused in his examination said that he did not wish to leed any defence evidence nor was in fact led in the DL 1 SR 1037 2 present case. In his examination he does not dispute his identity at the spot and claims that he was falsely implicated as he had no bribe to offer to the police officials. However, he has not filed any complaint to that effect. He also says that the sample of breath was taken three times. Then, on the basis of above said evidence, final arguments were led.
3. The Ld. APP for the State has argued that all the three prosecution witnesses have deposed on the lines of challan. There is no material contradiction in their evidence. They have identified the accused in the court. They have exhibited and proved the challan document, alcometer slip as well as OSS form issued by them to the accused. Nothing has come out 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 no previous enmity nor any allegation of corrupt inducement nor any other motive of falsehood. Hence, the case against the accused is proved beyond reasonable doubt and he is guilty for drunken driving under section 185 of Motor Vehicle Act.
4. Ld. defence counsel for the accused had also led various arguments to show that it is a false and unjustified challan. Before dealing with the said arguments it is pertinent to lay down the law as enacted relating to the offence of drunken driving.
The necessary ingredients for proving the guilt of the accused in case of drunken driving as contained in section 185 of Motor Vehicle Act are:
a. The accused should have been driving the vehicle at the relevant time.
b. He is tested by breath analyser. c. On such testing, the alcohol content in his blood should be more than 30 mg in per 100 ml of blood.
Once these ingredients are proved the accused is guilty for drunken driving DL 1 SR 1037 3 and liable under section 185 of Motor Vehicle Act. It has been held in the case of Rajavalse Vs. State 1999 Cr. LJ. delivered by Karnataka High Court that to hold the accused guilty under section 185 of MV Act the prosecution has to prove that the blood of the accused contained alcohol exceeding 30 mg in per 100 ml of blood detected in a test by breath analyser. Hence, once the above said ingredients are fulfilled the accused is guilty for driving the vehicle in a drunken state. Section 203 subsection 1 authorises a police officer to stop any person driving a vehicle in a public place and suspected of drunken driving to give sample of his breath for breath test to determine the alcohol content in the blood of the accused. Such breath analyser is approved by the Government Agency. Under explanation given to section 203, it is provided that such breath test means a test for the purpose of obtaining an indication of the presence of alcohol in a persons blood carried out, on one or more specimens of breath provided by the accused by means of a device of the type approved by the Central Government, by notification in the official gazette for the purpose of such a test. Such device is approved vide notification S.O. 442 (E) dated 12.06.1989 and is device IV in the said notification and used in the present case. This provision also provides that such sample of breath can be required by the police officials one or more times. Under section 203 subsection 6, such evidence is made admissible.
5. The Ld. Defence counsel Sh. V.K. Pandey has raised various arguments and has also filed written submissions in support of the arguments, to prove that the challan is false and unjustified. Now, these arguments are dealt with hereinafter. The first argument raised is that there is apparent contradiction between the challan Ex. PW1/A and the evidence of PW2. The contradiction as pointed out by him is that in the challan, it is written that the accused was arrested and released on personal bond of Rs. 3,000/ whereas PW2 says that the accused DL 1 SR 1037 4 was not arrested. Hence, there is a doubt whether the accused was present on the spot at the relevant time. However, this is a superficial argument as PW2 specifically says that the accused was not arrested by him. In fact, it is clear from the challan that he was arrested and released on personal bond by the challaning officer. Moreover, the accused himself admits in his examination under section 313 that he was driving the vehicle at the spot of the offence at the relevant time.
6. The second argument raised by the Ld. Defence counsel that it was not the accused but the police officials themselves who were in intoxicated state and laid the blame on the accused. However, it appears to be false and casual defence as there is no crossexamination on this point nor there is any complaint by the accused against any of the prosecution witnesses that he has been implicated falsely.
7. The Ld. Defence counsel also pleads that as the accused was arrested it was mandatory for the police officials to get the medical examination conducted for his blood test to ascertain whether the accused was driving at the said public place in a drunken condition. The requirement of blood test is discussed in sections 202 to 204 of MV Act.
Section 202 Power to arrest without warrant: (1) A police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under section 184 or section 185 or section 197:
Provided that any person so arrested in connection with an offence punishable under section 185 shall, within two hours of his arrest, be subjected to a medical examination referred to in sections 203 and 204 by a registered medical practitioner failing which he shall be released from custody. (2) A police officer in uniform may arrest without warrant any person, who DL 1 SR 1037 5 has committed an offence under this Act, if such person refuses to give his name and address.
(3) A police officer arresting without warrant the driver of a motor vehicle shall if the circumstances so require take or cause to be taken any steps he may consider proper for the temporary disposal of the vehicle.
Section 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 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 DL 1 SR 1037 6 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.
(3) If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under subsection (1) or subsection (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 subsection (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.
Section 204 Laboratory test. (1) A person, who has been arrested DL 1 SR 1037 7 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.
(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 subsection 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 DL 1 SR 1037 8 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.
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.
8. The relevant portions of these provisions are discussed hereinafter. Section 202 subsection 1 provides that the blood test is mandatory only when after arrest, the accused is not released from custody. Then, the police officer shall have his medical test done by a registered medical practitioner within two hours of his arrest. If within such time, such test is not got conducted then the accused has to be released. However, in this case, the accused after arrest was immediately released on personal bond of Rs. 3,000/ by the Challaning Officer.
Section 203 sub section 1 provides the police officials the power to stop any person driving or attempting to driving motor vehicle in a public place to stop the vehicle and give one or more specimens of breath for breath test. As above said, such breath test in this case has been done by an instrument approved by the Government Agency vide a notification. Section 203 clause 6 makes this evidence admissible. Section 203 subsection 2 provides about the power the police officials to take breath sample for the breath test in case the accused is found involved in accident. Section 203 subsection 3 gives power of arrest if accused on a test under section 203 subsection 1 & 2 is found to have alcohol content in his blood. It is discretionary power to arrest as is clear from the word "may" used in section 203 subsection 3. Section 204 provides as to how the accused who has been arrested and taken to the police station be dealt with. In that case, the police official has the DL 1 SR 1037 9 discretion to have blood test conducted for detection of alcohol, if earlier the breath test conducted on him showed presence of alcohol content in the blood of the accused or the accused has failed or refused to submit to the breath test. In this case, all the above said provisions for conducting the blood test by a Registered Medical Practitioner in a laboratory are not applicable as the accused was immediately released on a personal bond and not taken to police station after arrest. Even otherwise, the police official has discretion to have or not to have the blood test conducted as the word used is "may" in section 203 as well section 204. Hence, blood test is not mandatory in the present case.
9. The last argument raised by the Ld. Defence counsel that PW2 who conducted the alcometer test for detecting presence of alcohol content in per 100 ml of blood is not an expert as is reflected from his crossexamination where he admits not being an expert and is not able to tell whether alcometer report reflects the quantity of breath or the quantity of blood. However, this is a superficial argument for several reasons. Firstly, if a witness in crossexamination inadvertently speaks a word which he did not wish to speak then he is not bound by it and can always correct himself as crossexamination is not a test of inadvertent errors but a test of credibility of a witness. It is a settled law in several Supreme Court Judgments. Secondly, the alcometer is a simple device where accused simply has to give a breath below on the breath cap or pipe which should be used anew in every case. Then, the relevant button is to be pressed and the alcohol content will come out on the alcometer slip. Again said, the breath sample can be taken again and again as allowed under section 203. Once, the above said ingredients as said in para 5 upon such test are fulfilled the accused will be held guilty under section 185.
10. In the present case, though in order dated 26.02.2011 whereby summons DL 1 SR 1037 10 were issued for prosecution evidence the breath cap and alcometer which was called along with have not been brought, it does not in any way prejudice the case of the accused. The reason for the same are manifold. Firstly, even if such instruments had been the case property they would not have served any purpose as the chemical quality of alcohol would have disappeared from the breath cap and there would have been no use of the lab test of such instruments. A case property is for the preservation of evidence and here such evidence could not have been preserved even if these instruments had been deposited as case property and sent to the Government Laboratory. Secondly, the accused admits his presence on the spot and there is a presumption under illustration (e) to section 14 of Evidence Act which provides that official acts have been regularly and duly performed. Unless there is something contrary to show that there was a motive to be dishonest the evidence of the police officials should not always be viewed with suspicion. Even otherwise no question on this aspect i.e. not bringing of the instruments have been asked in crossexamination by Ld. defence counsel.
11. There is a consistent line of judgments of the Apex Court and various High Court to the effect that mere nonjoining of public witnesses as independent source of corroboration does not affect the credibility of evidence of official witnesses and conviction can be based solely upon the evidence of official witnesses. Only condition is that it should be scrutinized carefully and accepted with caution if no taint of falsehood is found. Independent corroboration is only a rule of prudence and not a rule of law. The testimony of official witnesses is to be approached like the evidence of any ordinary witnesses. If evidence of such a witness is found entirely trustworthy, there is no need to seek corroboration. If they have no animus or hostility against the accused, their testimony would be relied upon to sustain conviction. The evidence of official witnesses must be DL 1 SR 1037 11 discarded or accepted on merits of evidence and not merely because they are interested though as abovesaid caution should be applied in scrutinizing their evidence. These observations were made in Hazari Lal v. State (Delhi Administration), AIR 1980 SC 873 and Hari Obula Reddy v. State of Andra Pradesh, AIR 1981 SC 82. In State of Kerala v. M M Methew & Anr., 1978 Cr.L.J. it was held that " Presumption that evidence of official witnesses is to be considered as tainted runs counter to the basic principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servant they are interested in the success of the case. Their evidence is to be tested and weighed by applying basic test of broad human probabilities." In Ahir Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217 it was held that it is wrong approach on the part of Magistrates to assume that government official abused his position and power in all cases as a matter of course where there is no reasonable basis for it to assume so from the evidence and surrounding circumstances. He should do so only when it appears that government servant like police officer, traffic official etc. abused his position. Otherwise, it is not a judicial approach to distrust and suspect them without grounds therefore. In Sh. Shadi Singh v. State of UT, Chandigarh 1981, Ch.Cr. C. 86 (P&H) it was held that the testimony of the official witness is to be corroborated by independent evidence is only a rule of prudence and not rule of law. If it were otherwise, it would be possible for any guilty person to escape punishment by resorting to device of bribing recovery witnesses. Merely on the ground that the conviction was based only upon the evidence of an official witness, it cannot assailed.
12. Hence, in view of the above said discussion and consideration of the DL 1 SR 1037 12 arguments led, I am of the opinion that the case against the accused has been proved beyond reasonable doubt by the prosecution who have proved that the accused was present at the relevant time and place as above said and the challan along with the alcometer slip and OSS Form have been duly proved by them. In view of the above said, I convict the accused under section 185 of MV Act for driving in a drunken condition at the public place above said. I also convict the accused for driving the above said vehicle without driving licence, insurance and without PUCC under section 3/181, 146/196 and 115 (CMVR) read with section 190 of MV Act respectively.
Let accused be heard on the point of quantum of sentence.
Copy of this judgment be given to the accused free of cost.
Announced in the open court (Ashok Kumar)
on 24.06.2011 Metropolitan Magistrate03,
Traffic, South District,
Saket, New Delhi.
DL 1 SR 1037 13
In the Court of Sh. Ashok Kumar, Metropolitan Magistrate03 (Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL 1 SR 1037 Challan No.: 709517 Circle :VVC U/S :185, 3/181, 146/196 RRR 32/177, 99.1/177 State Versus Rajender Date of Filing the Challan :14.02.2011 Arguments Heard on :04.04.2011 Date of Judgment :24.06.2011 Plea of the accused :Not Guilty Final Order :Convicted Present: Accused in person.
Order on Quantum of Sentence The accused is convicted vide separate judgment under the above said provisions. Ld. Defence counsel says that the accused is an employed person and working in a private company. He is residing with his parents and he is married with no child. As the accused is a first time offender, the counsel prays for leniency and prays that the benefit of Probation of Offenders Act be given to him. However, I am of the view that in perspective of increasing instances of fatalities DL 1 SR 1037 14 on the road, the offence of drunken driving needs to be dealt with some seriousness. The accused has been found guilty of driving the above said vehicle with high alcohol content of 316 mg per 100 ml of blood while under section 185 of MV Act 30 mg per 100 ml of blood is the permissible limit.
I have convicted the accused under section 185 of MV Act for drunken driving in a public place and for this offence I sentenced the accused to four days' of simple imprisonment and he is sentenced to no fine along with the substantive sentence. For the offence of driving without licence under section 3/181 of MV Act, the accused is sentenced to a fine of Rs. 500/, in conviction under section 146/196 of MV Act, he is sentenced to a fine of Rs. 1,000/, for driving without PUCC as required under Rule 115 Central Motor Vehicles Rule read with section 190 of MV Act the accused is sentenced to pay a fine of Rs. 1,000/ Total fine payable is Rs. 2,500/ and in default of payment of fine, he is sentenced to three days' simple imprisonment. Fine paid.
The bail bond and surety stands discharged. Documents be disposed of, as per rules.
Accused be supplied with the judgment and this order free of cost. File be consigned to record room, after necessary compliance.
Announced in the open court (Ashok Kumar)
on 24.06.2011 Metropolitan Magistrate03,
Traffic, South District,
Saket, New Delhi.
DL 1 SR 1037 15