Delhi District Court
Vakeel Khan vs The State on 16 August, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
CA No. 310 of 2018
Vakeel Khan,
S/o Sh. Mohd. Ibrahim,
R/o House No. A376,
Gautam Puri PhaseII,
Badarpur, New Delhi 44 ......Appellant
Versus
The State
Through the DCP Traffic
Delhi Police
Sarita Vihar Circle
New Delhi ......Respondent
Instituted on : 04.07.2018
Argued on : 04.08.2018
Decided on : 16.08.2018
JUDGMENT:
1 The appellant has impugned the judgment & order on sentence dated 02.07.2018 vide which he has been convicted u/s 3/181, 32/177, 146/196, 185 & 115/190 (2) MV Act and Vakeel Khan Vs. State - CA No. 310 of 2018 1 of 15 sentenced to undergo SI for two months u/s 185 MV Act whereas he has been admonished for the offences u/s 146/196, 32/177 & 115/190 (2), 32/177 and 3/181 MV Act.
2 The appeal is filed on the grounds that no case is made out against him as prosecution has failed to prove that he was riding the vehicle under the influence of alcohol. No blood or urine test was carried out. The Breath Analysis Test was not taken by any qualified or competent person. The smelling of alcohol does not mean that one is driving the vehicle under the influence of liquor. There is nothing on the record that alcohol has exceeded 30 mg/100 ml of the blood. Section 204 MV Act has not been complied with as arrested person is subjected to medical examination. Breath Analysis Test does not give a quantitative reading of alcohol in the blood. The Breath Analyzer Report is not sufficient evidence to hold him guilty u/s 185 MV Act. There is no evidence on record to base his conviction. Vakeel Khan Vs. State - CA No. 310 of 2018 2 of 15 Hence, this appeal.
3 Notice of the appeal is given to the prosecution. 4 The facts of the case are like this. On 17.04.2017 at 08:41 PM at Madanpur Khadar light appellant was found riding one two wheeler bearing Registration No. DL3SCC3874. The two wheeler was intercepted by traffic police party headed by ASI Vinod Kumar, Traffic Circle, Sarita Vihar. The appellant was found under the influence of liquor. He was asked to produce the documents of the vehicle. The appellant has failed to produced DL, RC, Insurance Certificate and PUC. The appellant was asked to undergo Breath Analysis Test. The alcohol contents were found to be 138 mg/100 ml of the alcohol which were more than the permissible limit. The vehicle was impounded. The challan chit was issued to the appellant.
5 The appellant has put his appearance in the Court. Vakeel Khan Vs. State - CA No. 310 of 2018 3 of 15 NOA u/s 251 Cr.PC for the offence u/s 3/181, 32/177, 146/196, 115/190 (2) and 185 MV Act was put to the appellant to which he pleaded not guilty and claimed trial. The prosecution has examined two witnesses. The prosecution evidence is closed. The appellant is examined u/s 281 Cr.PC. wherein he has taken the plea that he was not under the influence of the alcohol. The alcho meter was of some other person who was examined by the traffic police officials. He was forced to sign the challan. He has been falsely implicated. He has examined one witness in defence evidence.
6 Ld. Trial Court after perusing the entire evidence on record and hearing Ld. Addl.PP for the State and Ld. Defence Counsel has convicted the appellant for the offence u/s 3/181, 32/177, 146/196, 115/190 (2) and 185 MV Act. He was admonished for the offence u/s 3/181, 32/177, 146/196, 115/190 (2) MV Act but sentenced to undergo SI for two months u/s 185 Vakeel Khan Vs. State - CA No. 310 of 2018 4 of 15 MV Act.
7 PW1 ASI Vinod Kumar stated that on 17.04.2017 he was posted as ASI at Traffic Circle, Sarita Vihar, New Delhi. On that day, he alongwith PW2 Ct. Saurav was on Traffic Duty at Red Light, Madanpur Khadar. At 08:41 PM the appellant was coming from Badarpur Border side on motorcycle bearing Registration No. DL3SCC3874. He was stopped. The appellant was found under the influence of liquor. He was asked to produced the documents of the vehicle. The appellant has failed to produced DL, RC, Insurance Certificate and PUC. The appellant was asked to undergo Breath Analysis Test. The alcohol contents were found to be 138 mg/100 ml of the alcohol which were more than the permissible limit. The vehicle was impounded. The challan chit Ex.PW1/A was issued to the appellant. The challan chit Ex.PW1/B was also issued in the name of owner. OSS Form Ex.PW1/C bears his signature. The Vakeel Khan Vs. State - CA No. 310 of 2018 5 of 15 alcometer slip is Ex.PW1/D. The appellant is identified by him. During cross examination he stated that the appellant was driving the motorcycle. He has requested few passersby to join the investigation but in vain. The appellant was alone in the vehicle. He has asked the appellant to blow only once in the alcometer. The suggestion is denied that alcometer was not functioning properly at the time of the test or he was not present on the spot. 8 PW2 Constable Saurav has corroborated the version of PW1.
9 The appellant has examined one witness in defence evidence. DW1 Jahangir stated that on 17.04.2017 he alongwith appellant was present at Red light, Madanpur Khadar. They were standing near the footpath. The traffic police officials came there and demanded documents of the vehicle upon which photocopy of the documents were shown to them. The police officials insisted for the original documents. The challan was issued. No Vakeel Khan Vs. State - CA No. 310 of 2018 6 of 15 medical test was conducted. The photographs of the vehicle were not taken. No public person was associated. During cross examination, the suggestion is denied that he alongwith appellant was not present at the place of incident that is why he is unable to tell the make and registration number of the vehicle. He admitted that appellant was stopped by the traffic police officials and tested him for breath alcohol.
10 Ld. Counsel for the appellant submitted that mere smelling of alcohol does not mean that he has consumed alcohol. He further submitted that Breath Analysis Test is not a fool proof test and police official should have gone for his medical examination including blood and urine test to detect the exact amount of alcohol in his blood. He further submitted that provisions of Section 204 MV Act has not been complied with which shows that a person should be subjected to medical examination after his arrest. He further submitted that no public Vakeel Khan Vs. State - CA No. 310 of 2018 7 of 15 persons has been associated and defence version proves his defence.
11 Ld. Addl. PP for the State submitted that Breath Analysis Report in itself is a complete report which can be relied upon. She further submitted that medical examination is required u/s 204 MV Act only when a person is arrested but in this case the appellant was not arrested so there is no question to go for medical examination. She further submitted that testimony of PWs is consistent which can be relied upon.
12 Heard and perused the record.
13 Section 185 MV Act says that whoever driving or attempting to drive a Motor Vehicle has in his blood alcohol exceeding 30 mg/100 ml of blood is under the influence of liquor if it is detected by the test of Breath Analyzer. 14 Section 203 (1) MV Act says that any police officer Vakeel Khan Vs. State - CA No. 310 of 2018 8 of 15 in uniform or any officer of MV Department may require any person driving or attempting to drive the 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 u/s 185 MV Act. Provided that requirement for breath test shall be made as soon as reasonably practicable after the commission of the offence.
15 Section 203 (3) MV Act says that 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.
16 Section 203 (4) MV Act says that if a person, Vakeel Khan Vs. State - CA No. 310 of 2018 9 of 15 required by a police officer under subsection (1) or subsection (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.
17 It is clear from the plain reading of Section 203 (4) MV Act that a person can be arrested when he refuses to give breath test and police officer has reasonable cause of suspecting him of having blood in his alcohol. The person may be arrested without warrant. The person will be thereafter examined by the medical practitioner who will take his blood test to ascertain the amount of alcohol in the blood.
18 In the instant case the appellant has not refused to give test. His breath analysis test through alcometer was taken on the spot. He has not been arrested and thereafter question of his Vakeel Khan Vs. State - CA No. 310 of 2018 10 of 15 medical examination and taking blood sample as required u/s 204 MV Act does not arise at all.
19 The bare reading of Section 203 MV Act shows that one or more specimens of breath for breath test can be taken. The one specimen breath test was taken by means of alcometer. The requirements of Section 203 (1) MV Act have been complied with. Section 203 (5) MV Act says that the result of breath test shall be admissible in evidence. The breath test analysis taken u/s 203 (1) MV Act is admissible in evidence. There is no question of taking separate blood test or urine test by way of medical examination. The argument of Ld. Counsel for the appellant does not inspire confidence.
20 The prosecution has examined two witnesses in order to prove its case. The testimony PW1 & 2 clearly shows that on 17.04.2017 at 08:41 PM at Traffic Signal at Madanpur Khadar they were on duty. No question or suggestion is put to them that Vakeel Khan Vs. State - CA No. 310 of 2018 11 of 15 they were not on duty. Their testimony clearly shows that the appellant was riding the motorcycle bearing No. DL3SCC3874 who was found coming from Badarpur Border side. The appellant was stopped. No question or suggestion is put to them that they did not stop the appellant at the traffic signal. Their testimony further shows that appellant was alone on the motorcycle. No question or suggestion is put to them that someone else was with him or riding pillion on the motorcycle.
21 The defence adduced by the appellant does not inspire confidence. The testimony DW1 cannot be relied upon. The appellant has not put his defence to PW1 & 2. No question is put to PW1 & 2 that DW1 was with him at that time. No such plea has taken in the statement u/s 281 Cr.PC. It shows that the defence adduced by the appellant is an after thought. 22 The testimony of PW1 & 2 clearly shows that Vakeel Khan Vs. State - CA No. 310 of 2018 12 of 15 appellant has failed to produce the DL/RC/PUC of the motorcycle. The appellant was under the influence of alcohol as a result Breath Analysis Test was conducted. The testimony of DW1 supports that case of the prosecution. He has categorically admitted that appellant was stopped whose breath test for alcohol was conducted. It is clear from the testimony of Pws and DW1 that breath analysis test for detecting the alcohol in the blood was conducted by alcometer. The amount of alcohol was 138 mg/100 ml of Alcohol which is beyond the permissible limit of 30 mg/100 ml of Alcohol. There is no reason on the part of PW1 & 2 to implicate the appellant. The testimony of PW1 & 2 is consistent without any contradiction on record. Their testimony cannot be viewed with the aid of spectacles in the absence of public witnesses. Their testimony is cogent, convincing and trust worthy which is relied upon.
23 I do not find any infirmity in the judgment dated Vakeel Khan Vs. State - CA No. 310 of 2018 13 of 15 02.07.2018 passed by Ld. Trial Court and accordingly, the judgment of conviction is upheld.
24 Ld. Counsel for the convict submitted convict is 49 years old who has large family to support. He further submitted that convict is the first offender as there is nothing on the record to suggest his previous conviction. He further submitted that convict has already remained in custody and he be sentenced to undergo imprisonment for the period already undergone by him.
25. Ld. Addl.PP for the State has urged to the contrary.
26. Heard. The convict is the first offender as there is nothing on the record to suggest his previous conviction. He has remained in custody from 02.07.2018 till 04.07.2018. To my mind he has undergone sufficient punishment. One opportunity should be granted to the convict to mend himself. Keeping in view his age coupled with the fact that he is first offender, the order on sentence is modified. He is sentenced to undergo Vakeel Khan Vs. State - CA No. 310 of 2018 14 of 15 imprisonment for the period already undergone by him. 27 TCR alongwith copy of judgment be sent to the Ld. Trial Court for compliance.
28 Appeal file be consigned to record room.
announced in the open court on 16th August, 2018 (SURESH KUMAR GUPTA) Addl. Sessions Judge04 & Spl. Judge (NDPS) South East, Saket Courts,New Delhi Vakeel Khan Vs. State - CA No. 310 of 2018 15 of 15