Delhi District Court
In Judgment Delivered By Karnataka High ... vs . State on 25 June, 2011
IN THE COURT OF SUDHIR KUMAR SIROHI MM (TRAFFIC) -02,
SAKET COURT, DELHI.
Challan No.227168
Vehicle No. DL-3CAC 8788
Unique Case ID
State ...Complainant
Versus
Krishan Kumar
S/o Sh. Radhe Lal
R/o 7/8, DPS flat, East of Kailash,
New Delhi ...Accused
Date of offence : 15.04.2011.
Date of institution of Challan: 16.04.2011.
Date on which order was reserved: 26.05.2011.
Date of decision : 25.06.2011.
Decision : Conviction.
Present: Ld. APP for state.
Accused with Ld. Counsel Sh. V. K. Pandey.
JUDGMENT
1. The brief facts of the case are that on 15.04.2011 at about 10:33 pm accused DL-3CAC 8788 Page 1/8 Krishan Kumar was driving a car bearing number DL3CAC 8788 (hereinafter called offending vehicle) near Defence colony market while coming from Defence colony side towards Kotla side. When accused was tested by alcohometer (Breath analyzer) , accused was found driving under the influence of alcohol as per breath alcohol analysis report, he was found to have 36mg of alcohol per 100/ml of blood while the permissible limit u/s 185 of Motor Vehicle Act (MV Act) is 30 mg/100ml of blood. Accused also failed to produce insurance of vehicle and his driving licence on the spot. Accordingly, ASI/ZO Yeshvir Singh issued the challan for drunken driving, driving vehicle without driving licence and insurance. Accused was arrested u/s 202 of MV Act and released on personal bond in the sum of Rs. 3,000/- by the challaning officer.
2. The accused appeared in the court and was released on bail as the offences were bailable. The accusation was served on the accused u/s 251 Code of Criminal Procedure1973 on 18.04.2011 to which accused pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused, three prosecution witnesses namely PW1 ASI Yeshvir Singh, PW2 Ct. Ashok Kumar and PW3 Traffic Inspector, Defence Colony circle (TI/DFC) Mahesh Narayan stepped into witness box. The PW1 proved the challan as Ex. PW1/B and breath alcohol analysis report as Ex. PW1/A and Offence Seizure slip as Ex. PW1/C. All the witnesses were cross- examined, therefore the evidence of prosecution was closed by order dated 28.04.2011. All the witnesses correctly identified the accused in court.
4. The statement of accused u/s 313 of Code of Criminal Procedure (Cr.P.C.) 1973 was recorded and entire incriminating circumstances appearing in evidence against the accused were put to him. The accused stated that he wants to lead DL-3CAC 8788 Page 2/8 defence evidence and u/s 313 Cr.P.C. Statement, accused stated that he was not driving under the influence of alcohol and he showed his driving licence and insurance on the spot.
5. PW1 in his deposition stated that on 15.04.2011 at about 10:30 pm, accused was driving the offending vehicle while coming from defence colony side towards Kotla Mubarakpur side. Ct. Ashok stopped the vehicle and fowl smell of alcohol was coming from the mouth of accused so, TI /DFC checked the accused by alcohometer in the presence of PW1 and accused was having 36 mg/100 ml of alcohol as per breath analyzer report. PW3 handed over breath alcohol analysis report (Ex. PW1/A) to PW1. Accused also failed to produce his driving licence and insurance of the vehicle on the spot. Accordingly, PW1 prepared the challan for drunken driving and driving without insurance and licence. PW1 in his deposition also stated that nearly three to four persons were checked by alcohometer on that day and accused was the last one for the test. PW1 further deposed that accused pumped in to alcohometer two/three times and single cap was used for the test of accused in all three blows given by accused. PW2 in his deposition stated that on 15.04.2011 accused was driving offending vehicle from defence colony side towards Kotla side and he stopped the accused and asked for driving licence but fowl smell of alcohol was coming from mouth of accused therefore, he took the accused to TI DFC (PW3) who conducted the test by alcohometer on accused in his presence and it was found the accused was having 36 mg/100 ml of alcohol as per breath alcohol analysis report (Ex. PW1/A) therefore, PW1 issued the challan for drunken driving and for driving without driving licence and insurance of the vehicle. PW3 in his deposition stated that on 15.04.2011 at about 10:30 pm accused was driving offending vehicle while coming from Defence colony side towards Kotla side and the test by alcohometer DL-3CAC 8788 Page 3/8 on accused was conducted by him and it was found the accused was having 36 mg/100 ml of alcohol as per breath alcohol analysis report (Ex. PW1/A) and accused failed to produce registration certificate, driving licence and insurance on the spot. PW3 deposed that he handed over Ex. PW1/A to PW1 who prepared the challan. PW3 in his cross-examination stated that an alteration between accused and his team occurred on the day of incidence and PCR call was also made.PW3 also deposed that a person namely Mr. Gautam was with the accused at the time of alteration and he was also under the influence of alcohol. PW3 failed to specify what is 30 mg/100 ml of alcohol in section 185 of MV Act but he stated that if breath alcohol analysis reading is above 30 then the test is positive and he also knows how to conduct the test on breath analyzer.
6. In his defence accused produced DW1 Mr. Ramesh Gautam who stated that on the day of incidence he and accused was coming from Birth Party and accused was driving the offending vehicle while he was in his car with his family. DW1 further deposed that accused was stopped by traffic personnel and when he reached the spot he found PW3 shouting on accused and PW3 misbehaved with him and demanded money from him. Further examination in chief of DW1 was deferred as he wanted to bring some CD. After that DW1 did not appeared in the court and accused stated that he did not want to lead any further evidence . From the prosecution side no one was present therefore, DE was closed. Accused also deposited his valid driving licence in the court when he filed an application for release of R.C. of vehicle on supurdigi.
7. I have heard Ld. APP for state and ld. defence counsel. Ld. APP for state submitted that the accused was driving the offending vehicle under the influence of alcohol which has been proved by the breath alcohol analysis report and such report is admissible u/s 203(6) of MV Act and accused was having 36 mg /100ml DL-3CAC 8788 Page 4/8 of alcohol in his blood. Ld. APP further submitted that accused was driving without insurance. Ld. APP also stated that prosecution has proved the guilt of accused beyond reasonable doubt. Ld. defence counsel argued that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Ld. defence counsel further argued that:
(a) That the Traffic Inspector was not aware of what 30 mg/100 ml of alcohol means u/s 185 of MV Act so, how he can conduct the test if he is not aware of the basic ingredients of test and section 185 of MV Act.
(b) That the medical test u/s 203 and 204 was not conducted by registered medical practitioner when there was dispute between accused and traffic officials.
(c) Accused gave two blows into the air cap of breath analyzer and result 36 mg /100 ml of alcohol is cumulative effect of two blows and it is double the concentration of alcohol in the blood of accused. Now, I am dealing with contentions raised by ld. defence counsel one by one:
Contention A: Admittedly PW3 in his deposition stated that if a person takes 100 ml of alcohol then the quantity as per alcohometer will come in milligram and if milligram exceeds 30 then the test is positive. This deposition of PW3 shows that if the amount of alcohol exceeds 30 mg as per breath analysis report then the test is positive but PW3 is not aware of the fact that this 30 mg is the amount of alcohol per 100 ml of blood and not per 100 ml of alcohol, though it is just a technicality and it will not effect the result of alcohometer as it depends on the concentration of alcohol in breath sample so even if PW3 does not know what is per 100ml in section 185, it does not invalidate the test if the test is positive and reading is above 30 mg. Therefore, this contention of ld. Defence counsel is without merit.DL-3CAC 8788 Page 5/8
Contention B: Under Section 202 accused was arrested but he was released on personal bond in the sum of Rs. 3000/- at the same time when he was arrested. Proviso of Section 202 (1) states that if a person is arrested in connection of offence punishable u/s 185 then he shall be within two hours of his arrest be subject to medical examination as per section 203 & 204 of Motor Vehicle Act by registered medical practitioner failing which accused shall be released from custody. Reading of proviso of section 202 (1) states that only that if medical examination is not done within two hours of the arrest of accused then accused has to be released from custody and joint reading of section 203 & 204 along with section 202(1) proviso nowhere makes medical test compulsory along with breath analyzer test moreover, accused was released on bail on the spot itself. Therefore, this contention of ld. Defence counsel is without merit.
Contention C : Accused gave two /three blows to the cap attached to alcohometer and perusal of evidence of prosecution witnesses shows that a heavy blow upto nearly ten seconds is required for test and if a person does not give sufficient blows then he is required to give another blow. The concentration of alcohol will remain same in the every sample of air blown by accused as it cardinal principle of science that if air is present in atmosphere then concentration of its various component i.e. nitrogen, oxygen and other gases will remain same, same is in the present case if a accused is having a particular concentration then it will remain same even if a additional blow is given as it may increase the volume of air in the alcohomerter but the concentration of components will remain same and it is not the cumulative effect that resulted into positive test in the present case rather the concentration was same and it is not cumulative of the two blows given by accused to the cap of alcohometer. Therefore this contention of ld. Defence counsel is of no merit.DL-3CAC 8788 Page 6/8
8. For offence u/s 185 following ingredients has to be fulfilled A) accused should be driving or attempting to drive a motor vehicle.
B) He must be tested by breath analyzer.
C) After breath analyzer test, accused was found to have more than 30mg of alcohol per 100ml of blood.
In judgment delivered by Karnataka High Court titled as "Rajavalse M. Vs. State 1999 Cr.L.J 58" it has been held that to hold the accused guilty u/s 185 MV Act the prosecution has to prove that the blood of the accused contained alcohol exceeding 30mg/100ml of blood detected in a test by breath analyzer. Thus test by breath analyzer is sufficient to show the quantity of alcohol in per 100 ml of blood. If it is found on such test that the alcohol content was more than 30mg per 100ml of blood then the accused is punishable as per section 185 of MV Act. Perusal of the testimony of Challaning Officer PW1, PW2 and PW3 shows that accused was driving the offending vehicle under the influence of alcohol which was proved by breath alcohol analyses report as Ex. PW1/A and same is admissible in evidence as per section 203(6) of MV Act. Ex. PW1/A shows that accused was having 36 mg alcohol in 100ml of blood. PW2 and PW3 also deposed in consonance with PW1 and all prosecution witnesses deposed in line with the allegations laid down in challan and it has been proved that accused was driving the vehicle under the influence of alcohol and the vehicle was not having insurance but accused produced his driving licence in the court bearing No. P03051999131949 issued by NCT of Delhi having validity from 15.05.2008 to 14.05.2013 authorizing accused to drive motorcycle and light motor vehicle of non-transport category. Though accused produced one defecne witness but closed his defence evidence in between and abruptly. Defence witness did not depose DL-3CAC 8788 Page 7/8 anything in relation to challan rather deposed all the instances occurred after the challan. Therefore, the testimony of DW1 is of no help to the accused.
9. Therefore, in view of the aforesaid discussion testimony of the prosecution witnesses comes out as clear, convincing, reliable and inspires the confidence of the court. Hence the allegations against accused have been proved beyond reasonable doubt and it has been proved that accused was driving the vehicle with 36 mg alcohol per 100ml of blood and vehicle was uninsured. Accordingly the accused is convicted of offence punishable u/s 185 and 146/196 of MV Act 1988 . Let the accused be heard on quantum of sentence.
Pronounced in open court.
SUDHIR KUMAR SIROHI M. M DELHI 25.06.2011 DL-3CAC 8788 Page 8/8