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Delhi District Court

Jagdish Bisht vs State Of Nct Of Delhi on 25 March, 2013

                                     1

         IN THE COURT OF MS. DEEPA SHARMA,
            DISTRICT & SESSIONS JUDGE,
            DISTRICT SOUTH WEST:
          DWARKA COURTS, NEW DELHI

Criminal Appeal No. 11/2013


             Jagdish Bisht
             S/o Sub Major B.S. Bisht,
             R/o RZF-768/10,
             Raj Nagar-II, Palam Colony,
             New Delhi-110045.

                                                   ...Appellant

                  Versus


             State of NCT of Delhi
                                                   ...Respondent


Date of Institution     :     22.03.2013
Date of Arguments       :     22.03.2013
Date of Decision        :     25.03.2013



JUDGMENT

1. By this judgment, I shall dispose of an appeal under Section 375 Cr.P.C filed by the appellant/accused against the order of sentence dated 08.02.2013 passed by Sh. Santosh Kumar Singh, CA No. 11/2013 2 Ld. Metropolitan Magistrate (Traffic)-01, South West District, Dwarka Courts, New Delhi for the offence under Section 185 of the Motor Vehicles Act, for the offence under Section 3/181 of the Motor Vehicles Act and also for the offence under Section 146/196 of the Motor Vehicles Act.

2. In this case the appellant/accused had been challaned for drunken driving and driving the car without a valid insurance certificate and driving without driving license and on his plea of guilt he was convicted under Section 185 Motor Vehicles Act, under Section 3/181 Motor Vehicles Act and under Section 146/196 Motor Vehicles Act and was sentenced to undergo simple imprisonment for 20 days and a fine of Rs.2,000/- under Section 185 Motor Vehicles Act, a fine of Rs.500/- under Section 3/181 Motor Vehicles Act and a fine of Rs.1,000/- under Section 146/196 Motor Vehicles Act. In default of payment of fine, he shall further undergo simple imprisonment for 05 days. The fine already stands deposited. The present appeal is under Section 375 Cr.P.C.

3. It is argued on behalf of the appellant/accused that he be released on probation because he is the first offender and is doing a private job for his livelihood and is having the responsibility of his whole family including the family of his uncle who is a handicapped person. It is further submitted that the appellant is the sole bread earner of his family. It is further submitted that recently the father of the appellant has expired and now there is no other male member in the family. It is submitted that if the CA No. 11/2013 3 appellant is sent behind the bars, it would cause irreparable loss to him. It is prayed that the impugned order dated 08.02.2013 be set aside.

4. Ld. Chief Prosecutor on behalf of the State has argued that the appellant/accused has been convicted under Section 185 of the Motor Vehicles Act, under Section 3/181 of the Motor Vehicles Act and under Section 146/196 of the Motor Vehicles Act and even the period of sentence of 20 days with fine is lesser than what the legislature has envisaged. It is further argued that the Breath Alcohol Analysis Report reveals that the alcohol content in the blood of the appellant is 254.1 mg per 100 ml which is extremely higher than the permissible limit which is 30 mg per 100 ml and so he was heavily drunk and driving the car without a valid insurance certificate and driving without driving license and he does not deserve any leniency.

5. I have heard the arguments and have perused the record.

6. The present appeal has been filed under Section 375 of the Cr.P.C. Section 375 Cr.P.C states that no appeal lie when the conviction is on the basis of plea of guilt of the accused. An appeal under Section 375 Cr.P.C can be presented only to the extent to the legality of the sentence. In the present case, the appellant/accused has been convicted for the offence under Section 185 Motor Vehicles Act, under Section 3/181 Motor Vehicles Act and under Section 146/196 Motor Vehicles Act. Under Section 3/181 Motor CA No. 11/2013 4 Vehicles Act and under Section 146/196 Motor Vehicles Act only the fine has been imposed and the appellant has challanged the sentence of 20 days simple imprisonment for the offence under Section 185 Motor Vehicles Act.

7. Section 185 of the Motor Vehicles Act provides the sentence for the first offender as under:

185. Driving by a drunken person or by a person under the influence of drugs - Whoever, 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 analyser, or

(b) is under the 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.

8. From the bare reading of this Section, it is apparent that Ld. Metropolitan Magistrate is empowered to impose a sentence upto six months or with fine or with both. Therefore the order of sentence has been passed in exercise of his jurisdiction conferred by the legislature upon him.

9. The legislature has envisaged that even the first offender should be punished with sentence upto six months and with fine. In this case the fine imposed upon the appellant had already been deposited by the appellant.

10. It is argued on behalf of the appellant that the appellant was driving a car and that although the alcohol content as per the analysis report of the appellant is found to be 254.1 mg per 100 ml which is the higher than the permissible limit, but he is the first offender and that he has a family to maintain and that sentence of 20 days is a too harsh sentence and a lenient view be taken and mercy be endowed on him.

11. Keeping in view the facts and circumstances of the case and the fact that the appellant was not driving the commercial vehicle and that it is the first offence committed by him as there is nothing on record to show that he is a habitual offender and has a dependent family, I take a lenient view and I am of the opinion that sentence of four days would be sufficient. It is also submitted that the appellant has stopped drunk driving from the said date and has vowed not to repeat the offence in future and be careful in future. Keeping in view all the facts and circumstances of the case, I reduce the sentence and the appellant is sentenced to undergo simple imprisonment for four days. It is also apparent that the appellant is already undergoing the sentence.

12. With above observations, the appeal stands disposed off. A copy of this order be sent to the concerned court. A copy of CA No. 11/2013 6 this order be sent to the appellant in jail who is undergoing sentence there. A copy of this order be given dasti to Ld. Counsel for the appellant.

13. Appeal file be consigned to record room.

Announced in open court on 25.03.2013 (DEEPA SHARMA) DISTRICT & SESSIONS JUDGE, SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI.

Jagdish Bisht Vs. State of NCT of Delhi CA No. 11/13 25.03.2013 Present: Sh. V.K. Wadhwa Ld. Counsel for the appellant Sh. Devender Kumar Ld. Chief Prosecutor on behalf of the State Vide a separate order of even date, the appeal stands disposed off. The sentence of the appellant is reduced and the appellant is sentenced to undergo simple imprisonment for four days.

A copy of this order be sent to the concerned court. A copy of this order be sent to the appellant in jail who is undergoing sentence there. A copy of this order be given dasti to Ld. Counsel for the appellant.

Appeal file be consigned to record room.

(DEEPA SHARMA) DISTRICT & SESSIONS JUDGE, SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI.