Delhi District Court
State vs . on 29 November, 2013
IN THE COURT OF SH. SANTOSH KUMAR SINGH METROPOLITAN
MAGISTRATE (TRAFFIC) DWARKA COURTS: DELHI
CHALLAN NO: 03835
CIRCLE: MAYAPURI
VEHICLE NUMBER: DL 9CG 6312
U/S: 185 and 146/196 of Motor Vehicles Act
IN THE MATTER OF:-
STATE
VS.
BRIJ BHAN SINGH
S/O SH. TRIBHAVAN SINGH
R/O WZ-120 C, NARAINA VILLAGE, DELHI
Date of institution : 08.05.2013
Date of reserving Judgment/Order : 15.11.2013
Date of pronouncement of Judgment/Order: 29.11.2013
JUDGMENT
Brief statement of reasons for the decision of the case :
1. The brief factual matrix of the case are that the accused was driving the vehicle bearing registration number DL 9CG 6312 (Car). On 06.05.2013 at about 9.13 PM, at Maya Enclave Opp. Side, the said vehicle was stopped, smell of alcohol was coming from the mouth of the accused.STATE VS. BRIJ BHAN SINGH Page 1 of 13
VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 Thereafter, Breath Analysis Test was conducted upon the accused and as per report, the quantity of alcohol in blood was found to be 386.7 mg/100ml. Upon these facts, the accused was challaned accordingly under section 185 and 146/196 of Motor Vehicle Act 1988 (herein after referred as MV Act). The DL of accused was impounded.
2. That the accused moved an application to contest the matter, therefore, bail was granted to the accused as offences being bailable. Thereafter, notice of offences under section 185 and 146/196 of Motor Vehicles Act was framed, read over and explained to accused to which he pleaded not guilty and claimed trial.
3. Prosecution examined three witnesses to prove its case. PW1 SI Ram Mehar Singh No. 3821-D, PW2 Inspector R. K. Rathi, TI Mayapuri and PW3 Ct. Pradeep Kumar No. 4140.
4. During examination of Prosecution Witnesses, it was deposed by PW1 that on dated 06.05.2013 at about 9.13 PM, PW1 along with PW2 and PW3 Opp. Maya Enclave a special drunken driving checking was being conducted under the supervision of TI, Mayapuri. On the above mentioned date at about 9.13 PM one vehicle bearing registration no. DL 9CG 6312 was stopped by PW3. On being stopped smell of alcohol was coming from the mouth of the accused. On being checked by Breath Analyzer the content of alcohol was found to be 386.7 mg/100 ml. which is Ex. PW1/B which bears his signatures at point A. The accused failed to produce insurance certificate at the spot. Thereafter, a challan was prepared u/s 185 and 146/196 M. V. Act STATE VS. BRIJ BHAN SINGH Page 2 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 which is Ex. PW1/A which bears his signatures at point A. DL of accused was impounded.
5. PW2 Inspector R. K. Rathi, TI Mayapuri deposed that on dated 06.05.2013 he along with PW1 and other staff were carrying out anti drunken drive near Maya Enclave, Mayapuri Road. Around 9.15 PM the accused was driving his car and was stopped. On suspicion he was checked with alcometer by PW1 and his reading came 386.5mg/100 ml. The ZO prosecuted him u/s 185 MV Act and the accused was not carrying the insurance paper of his car hence section 146/196 MV Act. The challan bears his designation on challan which is already Ex. PW1/A at point B.
6. PW3 Ct. Pradeep Kumar deposed that on dated 06.05.2013 at about 9.13 PM, he along with PW1 and PW2 Opp. Maya Enclave a special drunken driving checking was being conducted under the supervision of PW2. On the above mentioned date at about 9.13 PM one vehicle bearing registration no. DL 9CG 6312 was stopped by him. On being stopped smell of alcohol was coming from the mouth of the accused. On being checked by Breath Analyzer the content of alcohol was found to be 386.7 mg/100 ml. which is already Ex. PW1/B which bears his name at point C. The accused failed to produce insurance certificate at the spot. Thereafter, a challan was prepared by ZO which is already Ex. PW1/A which bears his signatures at point C. DL of accused was impounded.
All PWs correctly identified the accused namely Brij Bhan Singh during their examination in Court.
STATE VS. BRIJ BHAN SINGH Page 3 of 13VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835
7. In cross examination of prosecution witnesses, PW1 deposed that he was present at the spot. PW1 deposed that Breath Analyzer test upon the accused was conducted by him. The device no. (Breath Analyzer) was not mentioned on challan by him. PW1 admitted that PW3 whose name is written on challan as witness had put his signature on it. PW1 checked DL, RC and insurance. After the preparation of challan the accused remained there for at least 30 minutes then he (accused) let the spot. PW1 admitted that at serial no. 1 name of witness was written as TI SHD.
8. In cross examination PW2 admitted that he had mentioned the right quantity of alcohol shown by the alcometer in his chief. He admitted that he had not put his signature as witness on challan.
9. In cross examination PW3 stated that Challan No. was 03885. PW3 further deposed that he put his signature on challan in the presence of PW2.
10. After the prosecution evidence closed, the statement of accused under section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused. In his statement accused admitted that he was driving the vehicle. He stated that he was not in drunken condition at the time of challan. He stated that he was driving the vehicle without holding insurance certificate. He admitted the fact that his DL was impounded in this case. He admitted that breath analyzer test was conducted upon him Ex. PW1/B which bears his signatures. Accused stated that he was stopped by traffic police STATE VS. BRIJ BHAN SINGH Page 4 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 officials on the point of checking. There were 3-4 persons with whom traffic police officers were having discussion. Thereafter, they demanded his documents and in compliance he handed over his documents. They also demanded insurance policy of the vehicle but he informed them that the same was in the file. Thereafter, they conducted breath alcohol analyzer test upon him and he blew accordingly. Thereafter, they challaned him and got his signature on it. Thereafter, he left the spot. Accused wanted to lead evidence in his defence. Thereafter, matter was fixed for DE.
Till dated 05.09.2013 list of witnesses not filed. Much time had already been given to the accused. The accused had delayed the proceedings but keeping in mind the summary trial case no further adjournment was granted to the accused. Hence, DE stood closed and the matter was fixed for arguments.
11. During the course of arguments, Ld. APP for the state argued that there is no contradictions in the testimonies of PWs except the minor one regarding the timing i.e. 9.13 or 9.30 PM. He further argued that breath analyzer slip which is Ex. PW1/B clearly shows that breath analyzer test was conducted at 9.13 and thereafter challan was prepared which is Ex. PW1/A. But this contradiction does not have any bearing upon the core of this case. He argued that PWs correctly identified the accused in the court. He argued that PW1, being Challaning Officer conducted the breath analyzer test as also affirmed by him in his cross examination. He further argued that challan was prepared by PW1 as also corroborated by PW2 and PW3. He further argued that PW2 has been authorized by Law to conduct breath analyzer test upon the accused and he did so during the discharge of his official duty. He further argued that STATE VS. BRIJ BHAN SINGH Page 5 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 accused had already admitted in his statement u/s 313 Cr.PC that breath analyzer test was conducted upon him by PW1 and he took his signature on breath analyzer slip Ex. PW1/B as well as on challan Ex. PW1/A. This evidence is itself sufficient that accused was present at the spot. Hence, the identity of the accused stands established. He further argued that accused had also admitted the fact that his DL was impounded in this challan. He also argued that neither the challan nor signature on breath analyzer report had been disputed by the accused which clearly showed that accused was driving the vehicle at the relevant point of time under the influence of liquor. He argued that both PWs have corroborated each other on material particulars and defence has failed to bring out any contradictions in their testimonies. He further argued that breath analyzer report is admissible piece of evidence u/s 203 MV Act. He concluded his arguments submitting that prosecution has proved the case against the accused beyond the reasonable doubt.
12. Ld. defence counsel argued that there is contradiction regarding the challan number and timing as AM or PM not written on challan. He argued that device number is not mentioned on challan. He further argued that there is no evidence to the fact that accused had blown air in the breath analyzer as no public witness was made at that time. He argued that there is no signature of any witness on challan. He argued that no public person was made a witness in this challan. He further argued that as per testimony of PW1, accused remained at the spot for 30 minutes after challan which shows that accused was pressurize to put his signature on challan. He further argued that PW2 had admitted in his evidence that he had not put his signature on challan and even his name/designation was not written on challan which shows that PW2 was not STATE VS. BRIJ BHAN SINGH Page 6 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 present on the spot. He further argued that accused was not arrested u/s 202 of MV Act because he was not present at the spot which raises a serious doubts in the prosecution's story and submitted that the accused had falsely implicated, therefore, he be acquitted from the case.
13. Arguments heard. Record perused. Ld. Counsel for the accused has taken the defence on the following points :-
1. Contradiction regarding timing and non mentioning of AM and PM.
2. No evidence of the fact that accused had blown air in breath analyzer as he was not present on the spot hence, he was not arrested.
3. Absence of name/designation of PW2 on challan.
4. Absence of signature of any witness on challan.
5. No public person was made a witness.
It is established rule of Criminal Jurisprudence that while appreciating the prosecution evidence the minor discrepancy and contradiction can not render the entire prosecution evidence useless and irrelevant unless such contradiction adversely affect the core of prosecution case.
14. Section 185 and section 202 of M. V. Act are reproduced as below :-
"As per section 185 M. V. Act driving by a drunken person or by a person under the influence of drugs. - Woever, while driving, or attempting to drive, a motor vehicle-
(a) has, in his blood, alcohol exceeding 30 mg per 100 ml.STATE VS. BRIJ BHAN SINGH Page 7 of 13
VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 of blood detected in a test by a breath analyzer, or
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
Shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation - For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle".
"As per section 202 of M. V. Act 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, 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 STATE VS. BRIJ BHAN SINGH Page 8 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 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 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.
Reading these two sections i.e. 185 and 202 of M. V. Act together, it is clear that whosoever drives or attempts to drive the motor vehicle under the influence of liquor is a punishable offence, if the content of alcohol in the blood exceeds 30mg/100ml detected by Breath Analyzer or who drives under the influence of drug to such extent which makes the driver incapable to exercising proper control over the vehicle. As per section 185 M. V. Act, even for the first offender, law prescribes imprisonment for a term which may extend to six months or with fine which may extend to Rs. 2000/- or with both.
Section 202 of M. V. Act which gives power to the police officer in uniform to arrest a person, without warrant, who has committed an offence u/s 184, 185 and 197 M. V. Act. Proviso attached to this section says that if any person is arrested u/s 185 M. V. Act then the police officer shall, within two hours of his arrest, subject him (arrestee) to medical examination referred to u/s 203 and 204 M. V. Act by Registered Medical Practitioner failing which he shall STATE VS. BRIJ BHAN SINGH Page 9 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 be released from custody.
Perusal of section 203 of M. V. Act talks about breath test which states that a police officer in uniform may asked a person driving or attempting to drive a motor vehicle in public place to provide one or more specimen of breath test, if such officer has reasonable cause to suspect that driver as committed offence u/s 185 M. V. Act. Proviso attached to section 203 M. V. Act requires that breath test be made soon after commission of such offence.
15. First defence regarding contradiction in timing and non mentioning of AM and PM is concerned. In this regard perusal of breath analyzer report and challan, it is clear that breath analyzer was conducted prior to the preparation of challan. The timing mentioned on the breath analyzer report Ex. PW1/B clearly shows that the time was 21.13 which means 9.13 PM and this timing is also mentioned on the challan. Perusal of file reveals that the challan was prepared after conducting breath analyzer test. Moreover, accused has admitted u/s 313 Cr.PC that he was driving the vehicle at that time. Therefore, this defence appears to be in-convincing.
16. Second defence regarding absence of evidence of the fact that accused had blown air in breath analyzer as he was not present on the spot hence, he was not arrested is concerned. In this regard perusal of depositions of all PWs and perusal of file makes it clear that breath analyzer test was conducted upon him (accused). Also accused has admitted this fact in his statement u/s 313 Cr.PC that breath analyzer test was conducted upon him and he signed the same. Breath analyzer report Ex. PW1/B bears the signature of STATE VS. BRIJ BHAN SINGH Page 10 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 accused at point A manifest that accused was present on the spot, therefore, identity and presence of the accused stands established. As regards the arrest of the accused is concerned, affecting an arrest is a prerogative of the police official as section 202 MV Act gives discretionary power to the police officer either to arrest or not. Hence, this does not warrant any further elaboration on that point. This defence is not maintainable.
17. Third defence regarding the absence of name/designation of PW2 on challan is concerned. Perusal of file and perusal of testimonies reveals that inadvertently Challaning Officer who was transferred in this circle from Shahdra circle mentioned the words "TI, SHD" on the challan. But this is a fact that TI, Inspector R. K. Rathi being the public servant was posted as TI, Mayapuri at the relevant point of time when the challan was prepared. In this case this is the only clerical/topographical error which does not have any bearing on the case. Hence, this defence is hardly sustainable.
18. Fourth defence regarding absence of signature of any witness on challan is concerned. In this regard, challan is considered to be a complaint made by a public servant during the discharge of his official duty. As per law complaint must be signed by the complainant and not by the witnesses. Moreover, complaint must be supported by documents. In this case, challan is signed by the Challaning Officer which is sufficient compliance of the mandate of section 200 Cr.Pc. Hence, this defence appears to be inconvincing.
19. Fifth defence regarding no public person was made a witness is concerned. In this regard I am of the view that no public person wants to STATE VS. BRIJ BHAN SINGH Page 11 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 become a witness in police case because they fear that they would be harassed by police and would face a lot of problems or inconvenience in attending the courts. Moreover the Hon'ble Supreme Court of India has held in various judgments that public witness is not necessary in each and every case because usually people do not come forward to become a witness.
Moreover, in the present case, all prosecution witnesses are police personnels who are public servants. PW-1 being the Challaning Officer prepared the challan in discharge of official duty and other PWs were also on duty. As per Indian Evidence Act 1872, all PWs are competent witnesses and their testimonies are reliable and corroborative in nature. There is no law which makes their testimonies dis-believable, hence their testimonies are credible. Hence, the arguments of Ld. Counsel for accused that no public person was made a witness in the present case by the challaning officer seems to be in- convincing.
20. Its a fact that drunken driving is supposed to be a menace to the society at large. Many innocent people have lost their precious life on road because of the drivers who drive the vehicle under drunken condition. Persons who drive the vehicle under inebriated condition do not respect the traffic rules and rule of law which are essential to regulate the civil society. Even drunken drivers have no respect to the life of innocent road users who either ply their small vehicles or simply walk on the road. Rule of law is made to maintain peace and harmony in society. Every citizen is duty bound to obey traffic rules as well as Rule of law. Drunken drivers show disrespect and disregard to the established traffic rules as well as Rule of law. Commission of such offences cannot be taken as a cup of tea and offenders cannot be allowed to drive/ply their vehicles on road under drunken condition. Accidents due to drunken STATE VS. BRIJ BHAN SINGH Page 12 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835 driving can be avoided if such offenders are punished as per established Rule of law. Therefore, in my view drunken driving should not be taken lightly.
In this present case accused was driving the Car under the high influence of alcohol without insurance policy itself shows that he has no respect towards the rule of law and to the life of innocent road users. Moreover, driving the Car under the influence of liquor put the life of other innocent road users in danger and causes grave inconvenience and threat to other small vehicles plying on the road.
21. In view of what have been discussed above prosecution has established a strong case against the accused and the defence has not been able to shake the credit of the prosecution witnesses. From the corroborated testimonies of prosecution witnesses and the Breath Alcohol Analysis Report, it is apparent that alcohol content in blood of accused was found exceeding 30mg/100ml. Prosecution has established the case against the accused beyond reasonable doubt, therefore, this court hold the guilt of accused stands established beyond reasonable doubt. Thus, accused is hereby convicted for the offence punishable u/s 185 and 146/196 of Motor Vehicle Act.
(ANNOUNCED IN THE OPEN COURT ON 29.11.2013 This Judgment contains 13 Pages and each paper is signed by me.
(SANTOSH KUMAR SINGH) METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT (TRAFFIC-01) DWARKA COURTS, DELHI/29.11.2013 STATE VS. BRIJ BHAN SINGH Page 13 of 13 VEHICLE NO. DL 9CG 6312 CHALLAN NO: 03835