Kerala High Court
Vimal Elias Thomas vs The Sub Inspector Of Police on 25 February, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941
W.A.No.336 OF 2020
AGAINST THE JUDGMENT IN WP(C) 32414/2019 (B) OF HIGH COURT OF KERALA DATED 30.1.2020
APPELLANT/PETITIONER:
VIMAL ELIAS THOMAS, AGED 49 YEARS
S/O. THOMAS. K.E., KATTUPADATHU HOUSE,
EDAYAR P.O. ERNAKULAM DISTRICT 686 662.
BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)
RESPONDENTS/RESPONDENTS:
1 THE SUB INSPECTOR OF POLICE
MUVATTUPUZHA POLICE STATION,
ERNAKULAM DISTRICT 686 661.
2 THE MEDICAL OFFICER,
GENERAL HOSPITAL, MUVATTUPUZHA,
ERNAKULAM 686 662.
SRI.ARAVINDAKUMAR BABU.T.K., SR.G.P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.336 OF 2020
: 2 :
JUDGMENT
Dated this the 25th day of February 2020 S.MANIKUMAR, C.J.
Instant writ appeal is filed against judgment dated 30.1.2020 in W.P. (C)No.32414 of 2019 by which, writ court declined to issue a direction to respondent No.1/the Sub Inspector of Police, Muvatupuzha Police station to delete the adverse remarks from Ext.P5/General Diary Abstract, which states that "the petitioner has consumed alcohol and the accident had taken place under the influence of alcohol" and to issue fresh General Diary Abstract to the petitioner with respect to the accident dated 17.11.2019 in relation to vehicle bearing registration No.KL-17S-8778.
2. After adverting to the rival contentions, documents and statement filed on behalf of respondent No.1, writ court dismissed the writ petition as under:
"3. The learned counsel for the petitioner submits that no medical test had been conducted and that there was no scientific data to support the observation in Ext.P5 General Diary Abstract that the petitioner had consumed alcohol.
4. A statement has been placed on record by the 1 st respondent stating that an accident had occurred at 2.00 am on 17.11.2019, in W.A.No.336 OF 2020 : 3 :
which the petitioner was involved and that the petitioner was brought to the General Hospital, Muvattupuzha for treatment and medical checkup and it was revealed that the petitioner had no injuries, but that he had consumed alcohol. Paragraph 4 of the statement reads as follows:-
"4. Thereafter the petitioner was brought to the General Hospital, Muvattupuzha for treatment and medical checkup. On examination, it was revealed that the driver, the petitioner had no injuries but he had consumed alcohol. A certificate in this regard was also received from the General Hospital, Muvattupuzha. Then he was brought to Muvattupuzha Police Station and he was tested with alcometer. Alcometer reading was also positive. Then he was send from the police station with his relative."
The contention of the petitioner is that he had not consumed alcohol and that the contentions in the statement are incorrect. I am of the opinion that these are factual matters which cannot be decided by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. This Court cannot embark on a fact finding enquiry as to the nature of the tests carried out and the observations entered in the General Diary. When a statement is placed on record stating that the petitioner was found to have consumed alcohol on the basis of accepted tests, this Court cannot sit in appeal over such observation. The prayer sought for in the writ petition cannot be allowed. This writ petition fails and the same is accordingly dismissed leaving open the contentions of the petitioner. In case the petitioner is aggrieved by the incorrect recording of facts in the General Diary, it is W.A.No.336 OF 2020 : 4 :
for the petitioner to seek action against the erring Police personnel who have made such entries."
3. Being aggrieved by the above judgment, instant writ appeal is filed by the appellant/writ petitioner on the following grounds, inter alia, that the reasoning, finding and observation of the learned Single Judge are solely based on the statement filed by the 1 st respondent/Sub Inspector of Police, Muvattupuzha Police Station. The specific contention of the appellant is that "no breath test or laboratory test was conducted by the 2 nd respondent as mandated under Motor Vehicles Act and no breath analyser test (alcometer test) was conducted by the 1st respondent". Moreover, in the statement filed by the 1 st respondent, it was stated that appellant/petitioner "was brought to Muvattupuzha Police Station and he was tested with alcometer. Alcometer reading was also positive".
4. Learned counsel for the appellant/petitioner submitted that the appellant was not tested with alcometer as stated in the statement and more particularly the 1st respondent did not produce the alcometer receipt, showing that the reading in the alcometer as positive. If the reading of the alcometer test is positive, necessarily, the 1st respondent ought to have registered a crime against the petitioner, but no crime was registered so far. According to the learned counsel for the appellant, it is very relevant to note that in Exhibit P5 W.A.No.336 OF 2020 : 5 :
General Diary Abstract, the 1st respondent has categorically stated that "on a perusal of certificate issued by the 2 nd respondent that the appellant/petitioner had consumed alcohol and thus the accident had taken place under the influence of alcohol". In the statement filed by the 1 st respondent it was stated that after treatment and checkup from the General Hospital, Muvattupuzha the appellant/petitioner was brought to Muvattupuzha Police Station and was tested with alcometer and the reading of the alcometer was positive and thereafter, he was sent from police station with his relative. In Exhibit P5 General Diary abstract, there is no reference at all with regard to the alcometer test or reading of the alcometer test. As per the statement filed by the 1 st respondent, the appellant/petitioner was tested with alcometer on the day of accident itself, i.e., 7.11.2019 and the date of the General Diary is 23.11.2019 and thus, the 1st respondent could have referred the result of the alcometer in the General Diary, but that was not done. The appellant's specific case is that neither the 1st respondent nor the 2nd respondent conducted any test to come to a conclusion that the appellant/petitioner had consumed alcohol and was under the influence of alcohol. If any test is conducted by them, necessarily the question would be a factual dispute, but no test was conducted by both respondents whatsoever. Hence the finding of the learned single judge based on false statement filed by the 1" respondent is liable to be set aside. W.A.No.336 OF 2020 : 6 :
5. Heard the learned counsel for the parties and perused the materials available on record.
6. Though learned counsel for the appellant strenuously contended that the appellant was not examined by the doctor, we are not inclined to accept said contention, taking into account the entries in Ext.P5 General Diary Abstract and Ext.P6 Certificate of Drunkenness issued by the second respondent/Medical Officer, General Hospital, Muvattupuzha. Though learned counsel for the appellant contended that no other alternative efficacious remedy is available to the appellant and therefore writ appeal was filed, we are not inclined to accept the said contention.
7. Ext.P5, abstract of the General Diary dated 23.11.2019 is extracted hereunder:
"Translation of Exhibit P5.
General Dairy Abstract District : Ernakulam rural Police Station: Muvattupuzha G.D. No. 031 Date : 23.11.2019 1.G.D.No. : 031
2.G.D. Date : 23.11.2019 W.A.No.336 OF 2020 : 7 :
3.G.D.Type : others
4.Entry of Officer : Sub Inspector/Soofi.T.M./355552/355552
5. Subject : G.D.entry
6. G.D. Brief On 17.11.2019 a motor car bearing registration No. KL-17S-
8778 hit on 3 electric posts at Muvattupuzha Electric section No.1 HT/LT in East Marady, Marady village in the night. After site inspection on 23.11.2019 it is understood that the damaged posts are restored. At the time of accident the police party were reached at the place of accident and the driver of the car was taken to General Hospital, Muvattupuzha and was undergone medical examination and in the Medical Certificate it is written "Has consumed Alcohol" and thus the accident had occurred under the influence of alcohol. On account of accident the front bumper, number plate, bonnet, radiator and front glass of the car was damaged. On examination of the vehicle records it is understood that the registered owner of the vehicle is Bobby P. Verghese, w/o. Vimal Elias Thomas, Kattupadathu, Edayar, Thirumarady and on perusal of Insurance Certificate it is realized that the vehicle is insured with United India Insurance Company, Policy No.1011013119p109188631 with coverage period from 15.10.2019 to 14.10.2020 and on examination of Driving License No.1710741992 it is understood that the name of license holder is Vimal Elias Thomas, S/o. K.E.Thomas, Kattupadathu house, Edayar, Koothattukulam and the license is valid upto 7.4.2021."
8. Ext.P6 is the certificate of drunkenness issued by the Casualty Medical Officer, General Hospital, Muvattupuzha. A perusal of the same shows that a W.A.No.336 OF 2020 : 8 :
request has been made by Muvattupuzha Police for examination and issuance of Certificate of Drunkenness of the appellant, aged 50 years, and that the appellant was accompanied by HC/PC No.BCP010299. Perusal of Ext.P6 certificate reveals the date and time of examination of the appellant was on 17.11.19 at 4.20 a.m. Identification marks of the person examined had also been entered and reported that the person examined has consumed alcohol and was under the influence. Smell of alcohol in breath was persisting.
9. A detailed statement has been filed on behalf of the first respondent/Sub Inspector of Police, Muvattupuzha in the writ proceedings, which reads as under:
"3. At the very outset, it is humbly submitted that on 17.11.2019 at about 02.00 Hrs, based on the information received at Muvattupuzha Police Station that there accident has occurred at Mudamattom Bhagam, East Marady, Muvattupuzha, Highway Police party rushed to the spot. The police party reached the spot and it was seen that a car bearing Reg.No.KL 17-S-8778 had hit three electric posts and sustained damages. It was also noticed that the front portion of the car was damaged and the driver of the car was safe without serious injuries. The public who reached the spot stated that driver of the car was under the influence of the alcohol. The police party collected the accident details and address details from the driver, the petitioner herein. From his abnormal behaviour, it was realised that he had consumed alcohol. The people who reached the spot at W.A.No.336 OF 2020 : 9 :
the time of the accident also stated that the car driver was under influence of alcohol which was his behaviour. The petitioner also declared to the people that there was a party and the amount of liquor he consumed was more than his capacity. In the meantime he apologized to the public for the nuicence caused.
4. Thereafter the petitioner was brought to the General Hospital, Muvattupuzha for treatment and medical checkup. On examination, it was revealed that the driver, the petitioner had no injuries but he had consumed alcohol. A certificate in this regard was also received from the General Hospital, Muvattupuzha. Then he was brought to Muvattupuzha Police Station and he was tested with alcometer. Alcometer reading was also positive. Then he was send from the police station with his relative.
5. In connection with this incident three electrical posts were damaged. Authorities till date the petitioner settled the issue with KSEB But no complaint was received from the KSEB authorities by remitting the damage cost.
6. Later, the petitioner submitted a request for availing GD Entry for this incident. As per the request, a GD entry was also issued to the petitioner with the description occurred on 17.11.2019 as he consumed alcohol."
10. Going through the material on record, we are of the view that unless and until a person is produced before the doctor, he cannot be examined and issued a certificate. In the case on hand, reading of Exts.P5 and P6 makes it W.A.No.336 OF 2020 : 10 :
abundantly clear that on 17.11.19 at 4.20 a.m. the appellant was produced before the Casualty Medical Officer, General Hospital, Muvattupuzha by a Police Constable attached to Muvattupuzha Police Station and was examined. Accordingly, Ext.P5 General Diary entries were made. Though the learned counsel for the appellant contended that no breath test was conducted by the Casualty Medical Officer, General Hospital, Muvattupuzha/respondent No.2 and by the Sub Inspector of Police/respondent No.1, we are not inclined to accept the said contentions. Prima facie, finding is there. That apart, as rightly observed by the writ court that all the contentions raised by the appellant/petitioner are factual matters, which cannot be decided by this court in exercise of jurisdiction under Article 226 of the Constitution of India. Appeal fails and it is dismissed.
Pending interlocutory applications, if any, shall stand closed.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
SHAJI P. CHALY JUDGE jes