Delhi District Court
State vs . on 29 July, 2013
IN THE COURT OF SH. SANTOSH KUMAR SINGH METROPOLITAN
MAGISTRATE (TRAFFIC) DWARKA COURTS: DELHI
CHALLAN NO: 719299
CIRCLE: DWARKA
VEHICLE NUMBER: DL 1LQ 0336
U/S: 185 of Motor Vehicles
IN THE MATTER OF:-
STATE
VS.
BRIJESH PAL
S/O SH. LAYAK SINGH
R/O C-5, BLOCK-C, MANGLAPURI VILLAGE, NEW DELHI
Date of institution : 23.04.2013
Date of reserving Judgment/Order : 17.07.2013
Date of pronouncement of Judgment/Order: 29.07.2013
JUDGMENT
Brief statement of reasons for the decision of the case :
1. As per the factual matrix mentioned in the challan are that on 22.04.2013 at about 08.10 PM, while coming from the side of Dabri and going towards Sector-6, the accused was driving the vehicle bearing registration STATE VS. BRIJESH PAL Page 1 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 number DL 1LQ 0336 (D Van) which when stopped smell of alcohol was coming from the mouth of the accused. Thereafter, Breath Analysis Test was conducted upon the accused and as per report the quantity of alcohol in blood was found to be 440 mg/100ml. On these facts, the accused was challaned accordingly under section 185 of Motor Vehicle Act 1988 (herein after referred as MV Act) and, the accused was arrested u/s 202 M.V. Act but was released on personal bond. The DL of the accused was impounded. The vehicle was handed over to his friend namely Dharmesh (Durvesh).
2. That the accused chose to contest the matter and accordingly bail was granted to the accused as offence being bailable one. Thereafter, particulars of offences of which he was accused were read over and explained to him vide separate notice framed on 07.05.2013 under section 185 of Motor Vehicles Act to which he pleaded not guilty and claimed trial.
3. In order to prove the prosecution's case, two witnesses were examined. PW1 being Challaning Officer namely SI Rajender Kumar, No. D-4587, DWC, PW2 namely Ct. Kartar Singh, No. D-2823 .
4. During the course of examination of Prosecution Witnesses, it was deposed by PW1 SI Rajender Kumar that on dated 22.04.2013 at about 8.10 PM, he along with Ct. Kartar Singh and other staff members was present before red light Sector-1, Dwarka. A special drunken drive checking was being conducted under the supervision of TI. One vehicle bearing registration no. DL 1LQ 0336 was coming from Dabri side and going towards Sector-6 side. The said vehicle was stopped by Ct. Kartar. On being stopped smell of alcohol was STATE VS. BRIJESH PAL Page 2 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 coming from the mouth of the accused namely Brijesh Pal. On being checked by Breath Analyzer, the content of alcohol in blood was found to be 440 mg/100 ml. as per report, which is Ex. PW1/A which bears his signatures at point A. He asked the accused to produce his Driving license and other documents of the vehicle. The accused produced the DL which is on record and as Ex. P1. Thereafter, a challan was prepared u/s 185 M. V. Act which is Ex. PW1/B which bears his (PW1) signatures at point A.
5. PW2 Ct. Kartar Singh, deposed in his examination in chief that on dated 22.04.2013 at about 8.10 PM, during special drunken drive checking he along with SI Rajender and other staff members was present before red light Sector-1, Dwarka. He deposed that he stopped one vehicle bearing registration no. DL 1LQ 0336. Smell of alcohol was coming from the mouth of the accused namely Brijesh Pal. Breath Analyzer Test was conducted upon the accused and as per the Breath Analyzer Report the content of alcohol in blood was found to be 440 mg/100 ml. which is already Ex. PW1/A which bears his name at point B. (PW1) ZO/SI asked the accused to produce his Driving license and other documents of the vehicle. The accused produced the DL which is on record and Ex. P1. Thereafter, a challan, which is exhibited as Ex. PW1/B, was prepared u/s 185 M. V. Act , which bears his name at point B Both PWs correctly identified the accused namely Brijesh Pal during their examination in Court.
6. In cross examination of prosecution witnesses, PW1 SI Rajender Kumar affirmed that he prepared the challan in his own handwriting. He also affirmed that PW2 Ct. Kartar stopped the accused. He further deposed that STATE VS. BRIJESH PAL Page 3 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 the accused gently stopped the vehicle and did not collide with the other vehicles. He further deposed that he did not take the accused to hospital. He deposed that he arrested the accused and released him on personal bond. He further deposed that the vehicle was handed over to Dharmesh (Durvesh) friend of accused. He denied the suggestion that alcometer was not working properly. He further denied the suggestion that accused was not drunk as shown in the alcometer. Further he admitted that no blood sample of accused was taken. He further admitted that no straight line test of accused was carried out. He further denied the suggestion that he was deposing falsely.
7. In cross examination PW2 affirmed that he stopped the accused. He further deposed that accused gently stopped the vehicle. He further affirmed that he noticed that smell of alcohol was coming from the mouth of the accused. He deposed that he took the accused to ZO who directed the accused to blow in alcometer/Breath Analyzer and the reading shown was 440mg/100ml. He denied the suggestion that alcometer/Breath Analyzer was not working properly. He admitted that he did not take the accused to hospital. He admitted that no blood sample was taken. He admitted that no straight line test of accused was carried out. He further denied the suggestion that he was deposing falsely.
8. 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 he admitted that he was driving the vehicle under the influence of liquor but he denied the quantity of liquor was so much as shown in the challan. He admitted the fact that his DL was STATE VS. BRIJESH PAL Page 4 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 impounded in this case. He further stated that after the preparation of challan the vehicle was handed over to him and his friend namely Durvesh who accompanied him to his house. Accused did not lead any defence evidence. Thereafter, matter was fixed for arguments.
9. During the course of arguments Ld. APP for the state argued that PW1 and PW2 have correctly identified the accused in court. He also argued that from the testimonies of PWs it is clear that accused person was driving the vehicle under the drunken condition. Breath Analyzer report which shows the quantity of alcohol in blood was 440mg/100ml which is Ex. PW1/A and signature of the accused on this report has not been denied by him which clearly shows that accused was driving the vehicle at relevant point of time under the influence of liquor. He also argued that neither breath analyzer nor breath analyzer report Ex. PW1/A has been disputed by the defence in this case. Ld. APP also argued that PW2 Ct. Kartar Singh had stopped the vehicle and breath analyzer test/alcometer test was conducted by PW2 which has not been disputed nor any suggestion was given by the defence counsel in this case. Ld. APP also argued that accused had also admitted the fact that he was challaned on 22.04.2013 at 8.10 PM by the Challaning Officer, which is Ex. PW1/B which bears his signature. Ld. APP argued that breath analyzer report/alcometer slip is admissible piece of evidence u/s 203 M.V. Act. 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 concluded his arguments submitting that prosecution has proved the case against the accused beyond the reasonable doubt. Ld. APP argued that accused has already admitted the fact u/s 313 Cr.PC. that he was driving the vehicle under the influence of liquor STATE VS. BRIJESH PAL Page 5 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 which does not give any room to him to run away from the charges.
10. Ld. Counsel for the accused argued that no blood sample of accused was taken though the accused was arrested by the Challaning Officer. He further argued that blood test is mandatory, if the Challaning Officer/police officer arrests the accused as per mandate of section 202 of M.V. Act 1988. He further argued that when the accused was asked to stop the vehicle, he gently stopped it and did not collide with other vehicles which shows that he was in the conscious state of mind. He further argued that no straight line test of accused was carried out. He further argued that no public person was made a witness in the present case by the Challaning Officer. He also argued that traffic officer handed over the vehicle to the accused and not to his friend. He further argued that after breath analyzer test /alcometer test which indicated the reading as 440mg/100ml, PW1 did not take the accused to hospital as he arrested the accused. PW1 arrested the accused but failed to get his blood sample test through Registered Medical Practitioner which is mandatory u/s 202 M. V. Act. Ld. defence counsel concluded his arguments by saying that accused was wrongly challaned and, therefore, he be acquitted from the case.
11. Arguments heard. Record perused. Ld. Counsel for the accused has taken the defence on the following points :-
1. No blood sample of accused was taken and hence no blood test was conducted by Registered Medical Practitioner which is mandatory u/s 202 of M. V. Act. Although PW-1 arrested the accused.
2. No straight line test of accused was carried out.
3. No public person was made a witness in the present case.STATE VS. BRIJESH PAL Page 6 of 12
VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 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.
12. 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. 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 STATE VS. BRIJESH PAL Page 7 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 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 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 STATE VS. BRIJESH PAL Page 8 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 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 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.
Ld. defence counsel has argued that no blood test of the accused was conducted is not maintainable as section 202 of M. V. Act is very clear that soon after the arrest breath test is necessary and not the blood test.
In the present case Challaning Officer conducted the breath test upon the accused by Breath analyzer/alcometer and then arrested and released him on personal bond, is sufficient compliance of section 202 of M. V. Act and hence blood test of the accused in such cases is not necessary specially when STATE VS. BRIJESH PAL Page 9 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 breath analyzer test has been carried out, soon after the commission of such offence, by the Challaning Officer. Therefore, this argument of Ld. Defence counsel is not maintainable.
13. As regards the second defence on the point of straight line test is concerned. This test is not necessary as it is not recognized in law anywhere. Therefore, this argument is vague and alien to law.
14. As regards the third defence regarding the fact that why public person was not made a witness in the case is concerned. In this regard I am of the view that no public person wants to 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, both prosecution witnesses are police personnels who are public servants. PW-1 being the Challaning Officer prepared the challan, exhibited as Ex.PW1/B, in discharge of his official duty and another witness PW-2 was also on duty. As per Indian Evidence Act 1872, both 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.
STATE VS. BRIJESH PAL Page 10 of 12VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299
15. Its a common knowledge that many people have lost their lives on roads just because of the drivers who drive the vehicle under the influence of alcohol. Such incidents/mishappenings can be avoided if the person who drives the vehicle always remains in his sense and, therefore, such situations/accidents can be avoided by punishing the offenders of drunken driving. Commission of such offences cannot be taken lightly by the court of law. The consequences of commission of such offence can be as serious as death of an individual. The individual could be an innocent person or the offender himself.
In this present case accused was driving the Commercial Vehicle (LGV) under the high influence of alcohol in peak hours when the traffic volume is higher, itself shows that he has no respect towards the rule of law and to the life of innocent road users. Driving such commercial vehicle on road puts grave threat to the innocent people on the road and also to small vehicles plying on the road. Drunken driving which is supposed to be primary cause of accidents due to which many innocent people have lost their lives on road. Drunken driving is a curse to society at large. In my view , the offence of drunken driving should not be taken lightly especially when the offender drives the commercial vehicle on road.
16. 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. Moreover accused has admitted his guilt u/s 313 Cr.PC. that he STATE VS. BRIJESH PAL Page 11 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299 was driving the vehicle under the influence of liquor hardly gives any room to escape from charges. 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 of Motor Vehicle Act.
(ANNOUNCED IN THE OPEN COURT ON 29.07.2013) This Judgment contains 12 Pages and each paper is signed by me.
(SANTOSH KUMAR SINGH) METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT (TRAFFIC-01) DWARKA COURTS, DELHI STATE VS. BRIJESH PAL Page 12 of 12 VEHICLE NO. DL 1LQ 0336 CHALLAN NO: 719299