Delhi District Court
State vs . on 6 September, 2013
IN THE COURT OF SH. SANTOSH KUMAR SINGH METROPOLITAN
MAGISTRATE (TRAFFIC) DWARKA COURTS: DELHI
CHALLAN NO: 51031
CIRCLE: MAYAPURI
VEHICLE NUMBER: DL 6 SJ 4368
U/S: 185, 3/181 and 146/196 of Motor Vehicles
IN THE MATTER OF:-
STATE
VS.
JEVACH KUMAR JHA
S/O SH. MUNNA JHA
R/O B-500, GALI NO. 1, PREM NAGAR, NEAR PATEL NAGAR
RAILWAY STATION, NEW DELHI
Date of institution: 18.10.2012
Date of reserving Judgment/Order: 24.08.2013
Date of pronouncement of Judgment/Order: 06.09.2013
JUDGMENT
Brief statement of reasons for the decision of the case :
1. The brief factual matrix of the case as contained in the challan are STATE VS. JEVACH KUMAR JHA Page 1 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 that on 11.10.2012 at about 20.50 PM, the accused while coming from the side of Ring Road, Naraina and going towards Patel Nagar, was driving the vehicle bearing registration number DL 6SJ 4368. When his vehicle was stopped, smell of alcohol was coming from the mouth of the accused. Thereafter, Breath Alcohol Analysis Test was conducted upon the accused and as per report Ex.
PW1/A the quantity of alcohol in blood was found to be 440 mg/100ml. Further, accused was found driving the said vehicle without holding Driving License and insurance certificate of the vehicle. Upon these facts, the accused was challaned accordingly under section 185, 3/181 and 146/196 of Motor Vehicle Act (herein after referred as MV Act) and the vehicle in question was handed over to his friend Manoj Jha.
2. That the accused decided to contest the matter and accordingly bail was granted to the accused as offences being bailable. Thereafter, on dated 31.10.2012, notice of offences u/s 185, 3/181 and 146/196 of M.V. Act was framed, read over and explained to the accused to which he pleaded not guilty and claimed trial.
3. That in order to prove the prosecution's case, two witnesses were examined. PW1 namely SI Om Prakash, No. D-1999, circle Mayapuri and PW2 namely Ct. Virender Singh, No. D-5156, circle Mayapuri.
4. During examination of Prosecution Witnesses, PW1 deposed that on dated 11.10.2012, he was on duty from 8.00 AM to late night till drunken drive checking over. On the above said date PW1 along with Ct. Virender and other staff who were checking the vehicles at point Fire Station, Naraina. A STATE VS. JEVACH KUMAR JHA Page 2 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 vehicle bearing registration number DL 6SJ 4368 while coming from the side of Ring Road and going towards Patel Nagar side was got stopped by Ct. Virender and he found that the accused was in alcoholic condition as smell of alcohol was coming from the mouth of the accused. Thereafter, PW2 conducted the breath alcohol analyzer test upon the accused and the content of alcohol in blood was found to be 440mg/100 ml as per report Ex. PW1/A. He deposed that accused was not holding the DL and insurance police of the vehicle on the spot. Accordingly, challan was prepared under section 185, 146/196 and 3/181 of Motor Vehicle Act. The vehicle was handed over to friend of the accused namely Manoj Jha.
5. PW2 had deposed in his examination in chief that on that day i.e 11.10.2012 he was posted as Ct. at Mayapuri circle. He along with ZO/SI Om Prakash was on duty from 8.00 AM to late night till drunken drive checking over. On that day a vehicle bearing registration number DL 6SJ 4368 was, coming from the side of Ring Road and going towards Patel Nagar side, being driven by accused. The above said vehicle was got stopped by him (PW2). Smell of alcohol was coming from the mouth of the accused. Thereafter, he conducted Breath Analysis Test upon the accused.The content of alcohol in blood was found to be 440mg/100ml as per report which is already exhibited as PW1/A. The accused was not holding Driving License and insurance of the vehicle on the spot at the time of challan. Accordingly, the challan was prepared which is already exhibited as PW1/B. The vehicle was handed over to his friend namely Manoj Jha who was pillion rider.
Both PWs correctly identified the accused namely Jevach Jha during their examination.
STATE VS. JEVACH KUMAR JHA Page 3 of 12VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031
6. In cross examination of prosecution witnesses, PW1 stated that the challan Ex. PW1/B was prepared by him at 8.50 PM. He deposed that he did not know whether the accused was accompanied by any person or not. He further stated that challan bears the signatures of the accused but only the name of the constable present on the spot was mentioned on the challan not his signature. PW1 denied the suggestion that challan was signed by Manoj only. PW1 deposed that he checked the DL of Manoj Jha who put his signature at point 'M'.
7. PW2 Ct. Virender Singh had deposed in his cross examination that he had stopped the vehicle at 8.45 PM. PW2 further stated that Breath Analyser Test was conducted upon the accused only. PW2 denied the suggestion that he conducted the Breath Analyser Test upon Manoj Jha.
8. After the prosecution evidence, the statement of accused under section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused but he summarily rejected the same and said that he was not driving the vehicle and he was not drunk. When accused was asked whether he wants to lead any defence evidence. He replied that he wants to lead defence evidence and the matter was listed for defence evidence.
9. The accused produced himself as a defence witness. In his examination in chief DW1 deposed that he was going from Naraina to his house in Prem Nagar and his vehicle was got stopped at Fire Station. He further deposed that he was driving the vehicle and his friend Manoj Jha was sitting STATE VS. JEVACH KUMAR JHA Page 4 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 pillion rider. DW1 further deposed that alcometer machine was inserted in his mouth then the alcometer machine was also inserted in the mouth of his friend Manoj Jha as he was in drunken condition. DW1 further stated that the police officials checked all papers of the vehicle. He produced the learning license and RC of the vehicle but he could not produce insurance paper and hence a challan was prepared by the Challaning Officer.
10. DW2 Manoj Jha deposed in his chief that on 11.10.2012, he and Jevach Jha were coming from Naraina and going towards Prem Nagar. Before Payal Cinema, 7 police officials stopped them and took out the key of the bike. He deposed that they went with them. After that alcometer was put in his mouth as well as in the mouth of Jevach Jha accused. Thereafter, a slip was taken out from the alcometer. They had taken the number of his driving licence and challan was prepared accordingly. They were asked to appear before the Court. DW2 deposed that he was in the drunken condition and was sitting as pillion rider. He further deposed that the accused Jevach Jha had not taken the liquor.
11. DW1 deposed in cross examination that he was coming after attending his friend's birthday party from Naraina. DW1 further deposed that he did not make any call to 100 no. when the police man challaned him. DW1 denied the suggestion that he was not drunk. DW1 stated that he was driving the vehicle when police man apprehended him. DW1 denied the suggestion that he was deposing falsely. DW1 further denied the suggestion that on that day he was drunk and that is why police man challaned him.
STATE VS. JEVACH KUMAR JHA Page 5 of 12VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031
12. DW2 in his cross examination denied the suggestion that accused Jevach Jha was not drunk.
13. During the course of arguments Ld. APP for the state argued that both PWs had identified the accused in court correctly. He argued that there is not contradictions in the testimonies of PWs. He argued that accused had stated in his statement u/s 313 Cr.PC that he was not driving the vehicle under the drunken condition whereas DW1 had admitted in his deposition that he was driving the vehicle and he also admitted that the breath analyzer test was conducted upon him. Therefore, there is no question that accused was not driving the vehicle. Further he argued that breath alcohol analyzer test is usually conducted only upon the person who drives the vehicle under drunken condition. DW1 has not denied his signature on challan (Ex. PW1/B) as well as on breath analyzer report which is Ex. PW1/A. He further argued that PW2 Ct. Virender, who stopped the vehicle, had deposed in his evidence that the accused was driving the vehicle under drunken condition. Therefore, breath analyzer test was conducted upon the accused. He argued that breath analyzer test was conducted by PW2 upon the accused. Even DW2 Manoj Jha in his cross had denied the suggestion that accused was not drunk. Moreover, DW1 has admitted that breath analyzer test was conducted upon him leaves hardly any room for the accused to escape from the charges. He further argued that there are contradiction in the testimonies of DW1 and DW2 because DW1 had stated that the alcometer machine was inserted in his mouth first then in the mouth of his friend DW2. Whereas DW2 had deposed that alcometer was put in his mouth then in the mouth of DW1. Therefore, its a major contradiction in the deposition of DWs which renders their evidence STATE VS. JEVACH KUMAR JHA Page 6 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 unworthy of credit and hence cannot be relied upon. He argued that breath analyzer report is admissible in evidence. He further argued that both PWs have corroborated each other on material particulars. Both PWs are competent and reliable witnesses in this case as there is no contradiction in their deposition. Ld. APP concluded his arguments submitting that prosecution has proved its case against the accused beyond reasonable doubt.
14. Ld. defence Counsel for the accused argued that no public person was made a witness in the present case by the Challaning Officer. Ld. Counsel for the accused also argued that PW2 had not put his signature as witness on challan.
15. Arguments heard. Record perused. Ld. Counsel for the accused has taken the defence on the following points :-
1. No public person was made a witness in the present case.
2. Absence of signature of PW2 as witness on challan.
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.
16. 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 STATE VS. JEVACH KUMAR JHA Page 7 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 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 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:STATE VS. JEVACH KUMAR JHA Page 8 of 12
VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 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 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 STATE VS. JEVACH KUMAR JHA Page 9 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 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.
In this case accused was not arrested but only breath analyzer test was conducted upon him. In such cases police officer has discretion to arrest the accused but this is not mandatory for him as per the wordings of section 202 of MV Act.
17. As regards the first 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. 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.
18. As regards the second defence on the point of absence of signature of PW2 on challan is concerned. In this regard I am of the view that name of PW2 has already been cited on challan by Challaning Officer which is itself sufficient that PW2 was present at the time of challan. Further, the accused had admitted in his statement u/s 313 Cr.PC the fact of presence of both PWs at the relevant point of time when the challan was prepared.
STATE VS. JEVACH KUMAR JHA Page 10 of 12VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 Therefore, the arguments of the Ld. defence counsel regarding the absence of signatures of PW2 on challan does not have any force.
19. 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 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 Two Wheeler under the high influence of alcohol in peak hours when the traffic volume was higher, itself shows that he has no respect towards the rule of law and to the life of innocent road users. Moreover, driving the two wheeler under the influence of liquor primarily put the life of the driver in danger which may also cause grave inconvenience and threat to other road users and drivers who ply their vehicles on road too.
20. In view of what have been discussed above prosecution has STATE VS. JEVACH KUMAR JHA Page 11 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031 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, 146/196 and 3/181 of Motor Vehicle Act.
(ANNOUNCED IN THE OPEN COURT ON 06.09.2013) 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. JEVACH KUMAR JHA Page 12 of 12 VEHICLE NO. DL 6SJ 4368 CHALLAN NO: 51031