Delhi District Court
Prashant Kumar vs . The State on 31 August, 2015
Prashant Kumar Vs. The State
CA No: 12/2015
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBII
DWARKA COURTS; NEW DELHI
Prashant Kumar
S/o Sh. Praveen Kumar
R/o C224, Sector7
Pappan Kalan, Dwarka, New Delhi.
......... Appellant
VERSUS
State of NCT of Delhi.
.......Respondent
CA No. 12/2015
Date of Institution 23.07.2015
Reserved for orders on 21.08.2015
Judgment announced on 31.08.2015
JUDGMENT
1. This appeal is directed against the order of conviction and sentence dated 23.06.2015 passed by Ld Metropolitan Magistrate ( Traffic) - 02, Dwarka Courts, New Delhi whereby the appellant was sentenced to simple imprisonment for 10 days and a fine of Rs. 2000/ under Section 185 MV Act, and in default of payment of fine, the appellant was further ordered to undergo simple imprisonment for 10 days.
2. The allegations against the appellant are that on 22.06.2015 CA No: 12/2015 Page 1 of 8 D.O.O. 31.08.2015 Prashant Kumar Vs. The State CA No: 12/2015 at about 19:18 hours, the appellant was found driving a Public Passenger vehicle i.e. a TSR No. DL1RP9907 and he was stopped by the officials of Traffice Police at Gurgaon Road, Dhaula Kuan, Delhi and appellant was found smelling of alcohol and he was subjected to Breath Alcohol Analysis Test and the Alcohol content in the blood of appellant was found to be 440mg/100 ml which was found to be much higher than the permissible limit of 30 mg/100 ml of blood and also could not produce certificate of fitness of vehicle and consequently, the appellant was challaned for offences under Sections 185, 56/192 and 39/192 of the Motor Vehicle Act, 1988 and the appellant was sent for trial to the court of Ld. MM.
3. As per the impugned order dated 23.06.2015, the appellant had appeared before Ld. MM along with Counsel and accusation was explained to appellant by Ld. MM in vernacular language and after understanding the legal consequences of voluntarily tendering plea of guilt, the appellant preferred to plead guilty for offence under Section 185 MV Act and plea of guilt of the appellant was accepted by Ld. MM and appellant was convicted for offence 185 of the Motor Vehicle Act, 1988 and was sentenced to simple imprisonment for 10 days and also a fine of Rs. 2000/ under Section 185 MV Act, and in default of payment of fine, the appellant was further ordered to undergo simple imprisonment for 10 days. As per impugned order dated 23.06.2015, the appellant was admonished under section 39/192 and Section 56/192 of MV Act, as appellant produced the CA No: 12/2015 Page 2 of 8 D.O.O. 31.08.2015 Prashant Kumar Vs. The State CA No: 12/2015 certificate of fitness.
4. Arguments heard and record perused. Ld. Addl. PP has contended that the appeal is barred by provisions of Section 375 Cr.P.C. as the appellant had voluntarily pleaded guilty and he has been convicted on the basis of plea of guilt.
5. Ld. Counsel for the appellant has contended that he is not challenging the conviction of appellant under Section 185 of Motor Vehicle Act as the appellant had pleaded guilty voluntarily, however he is challenging the sentence imposed on the appellant vide order on sentence dated 23.06.2015 and the appellant be heard on the point of sentence.
6. The appellant has contended that he voluntarily tendered plea of guilty for offence under Section 185 MV Act and he is not challenging the order of conviction dated 23.06.2015.
7. The appellant was convicted for offence under Section 185 MV Act vide impugned order dated 23.06.2015 on the basis of voluntarily tendering plea of guilty by him and the appellant is not challenging his conviction for offence under Section 185 MV Act. Hence the impugned order dated 23.06.2015 by which the appellant was convicted for offence under Section 185 of Motor Vehicle Act is upheld.
8. I have heard Ld. Counsel for the appellant, Ld. Addl. PP for the State on the point of sentence.
9. Vide impugned order dated 23.06.2015, the appellant has been sentenced to SI for a period of 10 days and a fine of Rs. 2000/ under Section 185 MV Act and in default of payment of CA No: 12/2015 Page 3 of 8 D.O.O. 31.08.2015 Prashant Kumar Vs. The State CA No: 12/2015 fine , the appellant was further sentenced to SI for a period of 10 days. As per impugned order dated 23.06.2015, the fine of Rs. 2000/ has already been deposited.
10. The contention of Ld. Counsel for the appellant is that appellant is a young man of 39 years of age and is the only bread earner of his family consisting of wife and two minor children and he is not a previous convict.
11. It is contended that children of appellant are studying in 7th standard and 5th standard respectively and in the absence of appellant, there will be noone to support his family. It is further contended on behalf of appellant that the benefit of provisions of Section 4 of Probation of Offenders Act, 1958 be given to the appellant.
12. Ld. Addl. PP for the State has contended that appellant was driving a public passenger vehicle i.e. TSR and the quantity of Alcohol in the blood of appellant was 440mg/100ml which is much beyond the permissible limit of 30mg/100 ml, as provided by Section 185 MV Act and by driving in intoxicated state, the appellant was risking the life of citizens and in the circumstances, the sentence as imposed on him is not required to be reduced.
13. Section 185 MV Act reads as :
Driving by a drunken person or by a person under the influence of drugs. Whoever, while driving, or attempting to drive, a motor vehicle,
(a) has, in his blood, alcohol exceeding 30mg. per 100 ml. of CA No: 12/2015 Page 4 of 8 D.O.O. 31.08.2015 Prashant Kumar Vs. The State CA No: 12/2015 blood detected in a test by a breath analyser, or
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle .
14. The appellant has prayed for giving benefit of Section 4 of the Probation of Offenders Act, 1958.
15. Section 4 (1) of the Probation of Offenders Act, 1958 provides:
Power of court to release certain offenders on probation of good conduct .(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which CA No: 12/2015 Page 5 of 8 D.O.O. 31.08.2015 Prashant Kumar Vs. The State CA No: 12/2015 the offender is likely to live during the period for which he enters into the bond.
16. Section 360 (1) provides :
Order to release on probation of good conduct or after admonition . (1) When any person not under twentyone years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twentyone years of age or any women is convicted of an offence not punishable with dealt or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour.
Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he CA No: 12/2015 Page 6 of 8 D.O.O. 31.08.2015 Prashant Kumar Vs. The State CA No: 12/2015 shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class forwarding the accused to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by subsection (2).
17. As per allegations of prosecution, the appellant was driving a public passenger vehicle i.e. TSR and the alcohol content in the blood of appellant was found to be 440mg/100ml while the maximum permissible limit as prescribed by Section 185 of Motor Vehicle Act is 30mg/100ml. Hence, the appellant was driving public passenger vehicle while the alcohol content in his blood was more than 10 times the prescribed permissible limit of 30mg/100ml.
18. By driving the TSR in highly intoxicated state , the appellant was not only risking his own life but he was risking the lives of passengers who boarded his TSR on the faith that he will ensure safe journey for them. Moreover such an highly intoxicated driver is not only likely to cause to harm himself and the passengers traveling in his TSR but also the lives of other road users.
19. The appellant has pleaded for a lenient view on the ground that he is the only bread earner in his family consisting of wife and two minor school going children but the appellant had not realized the same while he was driving the vehicle in highly intoxicated state that in case any mishappening takes place and he suffers any harm then in that case who will be there to CA No: 12/2015 Page 7 of 8 D.O.O. 31.08.2015 Prashant Kumar Vs. The State CA No: 12/2015 support his family.
20. In the impugned order dated 23.06.2015, Ld. MM has been pleased to observe that the said court does not think fit that the appellant be dealt under Section 360 or under the provision of The Probation of Offenders Act, 1958. In the totality of circumstances, I am of the view that Ld. MM has exercised his discretion in this regard judiciously and there is no ground to interfere in the same.
21. Ld. MM has already exhibited sensitivity while sentencing the appellant for offence under Section 185 of Motor Vehicle Act by imposing term of imprisonment of 10 days and fine of Rs. 2000/ however looking at the family circumstances of the appellant , the term of imprisonment of 10 days awarded to the appellant is reduced to term of imprisonment of 5 days. The appellant be taken into custody to serve the sentence.
22. Appeal file be consigned to record room . Copy of this judgment be given to appellant free of cost. TCR be sent back to court concerned along with copy of this judgment.
Announced in the open (HARISH DUDANI)
Court on 31.08.2015 Special Judge,( PC Act) CBII
Dwarka Courts, New Delhi.
CA No: 12/2015 Page 8 of 8 D.O.O. 31.08.2015