Delhi District Court
Rajavalse vs . State 1999 Cr. Lj. Delivered By ... on 24 June, 2011
In the Court of Sh. Ashok Kumar, Metropolitan Magistrate03
(Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL 9SAC 1549
Challan No.: 451768
Circle :VVC
U/S :185, 3/181, 146/196 &
129/177
State
Versus
Bansh Rakhan
Date of Filing the Challan :17.01.2011
Arguments Heard on :04.04.2011
Date of Judgment :24.06.2011
Plea of the accused :Not Guilty
Final Order :Convicted
J U D G M E N T
1. By this judgment, I will dispose off the present traffic challan filed by the prosecution on 17.01.2011which challan was done on 16.01.2011 at about 12.40 pm near bus stand Sector C, Pocket 8, Vasant Kunj, New Delhi. This challan has been made under sections 185 (drunken driving), section 3 r/w 181 (driving without licence), 146/196 (driving without insurance) and under section 129/177 (without helmet).
2. Notice was framed under all the above said sections under section 251 Cr. PC as accused did not plead guilty and claimed trial. Bail was granted to him on DL 9SAC 1549 1 furnishing of bail bond as the said offences are bailable. Vehicle was released on superdaginama. The facts of the case as appearing from the evidence of PW1the Challaning Officer ASI Bhim Singh and PW2 Ct. Pratap, Challan Ex. PW1/A and the alcometer report Ex. PW1/B are as follows. On 16.01.2011, the above said officials were posted near bus stand Sector C, Pocket 8, Vasant Kunj, New Delhi. At about 12.40 pm, the accused identified by them in the court came on motorcycle from the side of Masoodpur, New Delhi and was going towards Mahipalpur. He was stopped at bus stand Sector C, Pocket 8, Vasant Kunj, New Delhi as he appeared to be driving the above said vehicle in an intoxicated state. He was stopped and checked on alcometer. On taking sample of his breath, the content of alcohol reflected by the breath analyser/alcometer was found to be 361mg in 100 ml of blood. The accused was also checked for documents and he was found driving the above said vehicle without driving licence (DL), insurance, PUCC and without helmet. Hence, he was challaned vide Ex. PW1/A and thereafter the alcometer slip Ex. PW1/B was issued to him after his breath analysis or test taken by alcometer. The said prosecution witnesses were then cross examined and then the statement of accused was recorded under section 313 Cr. PC. The accused in his examination said that he did not wish to lead any defence evidence nor was in fact led in the present case. In his examination he does not dispute his identity at the spot and claims that he was falsely implicated. He says that he has been falsely challaned and was, in fact, slapped but he has not made any complaint in this respect before the superiors of the prosecution witnesses in police department as well as in any police station or court.
3. The Ld. APP for the State has argued that all the two prosecution witnesses have deposed on the lines of challan. There is no material contradiction in their evidence. They have identified the accused in the court. They have exhibited and DL 9SAC 1549 2 proved the challan document and alcometer slip issued by them to the accused. Nothing has come out from the crossexamination of the said prosecution witnesses which may suggest that their evidence is tainted in any manner in the sense that there is no previous enmity nor any allegation of corrupt inducement nor any other motive of falsehood. Hence, the case against the accused is proved beyond reasonable doubt and he is guilty for drunken driving under section 185 of Motor Vehicle Act.
4. Ld. defence counsel for the accused had also led various arguments to show that it is a false and unjustified challan. Before dealing with the said arguments it is pertinent to lay down the law as enacted relating to the offence of drunken driving.
The necessary ingredients for proving the guilt of the accused in case of drunken driving as contained in section 185 of Motor Vehicle Act are:
a. The accused should have been driving the vehicle at the relevant time.
b. He is tested by breath analyser. c. On such testing, the alcohol content in his blood should be more than 30 mg in per 100 ml of blood.
Once these ingredients are proved the accused is guilty for drunken driving and liable under section 185 of Motor Vehicle Act. It has been held in the case of Rajavalse Vs. State 1999 Cr. LJ. delivered by Karnataka High Court that to hold the accused guilty under section 185 of MV Act the prosecution has to prove that the blood of the accused contained alcohol exceeding 30 mg in per 100 ml of blood detected in a test by breath analyser. Hence, once the above said ingredients are fulfilled the accused is guilty for driving the vehicle in a drunken state. Section 203 subsection 1 authorises a police officer to stop any person driving a vehicle in a public place and suspected of drunken driving to give sample of his DL 9SAC 1549 3 breath for breath test to determine the alcohol content in the blood of the accused. Such breath analyser is approved by the Government Agency. Under explanation given to section 203, it is provided that such breath test means a test for the purpose of obtaining an indication of the presence of alcohol in a persons blood carried out, on one or more specimens of breath provided by the accused by means of a device of the type approved by the Central Government, by notification in the official gazette for the purpose of such a test. Such device is approved vide notification S.O. 442 (E) dated 12.06.1989 and is device IV in the said notification and used in the present case. This provision also provides that such sample of breath can be required by the police officials one or more times. Under section 203 subsection 6, such evidence is made admissible.
5. The Ld. Defence counsel Sh. V.K. Pandey has raised various arguments and has also filed written submissions in support of the arguments, to prove that the challan is false and fabricated. Now, these arguments are dealt with hereinafter. The first argument raised is that it is written in the challan that the pillion rider was not wearing the helmet and was found drunken. It means that the accused driver was not drunk vehicle at that time and was falsely implicated in this case. However, this is not a convincing argument and, in fact, a superficial argument as in the challan Ex. PW1/A it is written that the pillion driver was not wearing the helmet. As far as the accused driver is concerned, it is written that the driver was subjected to the breath test on alcometer and after which the level of alcohol content was found to be 361mg in per 100 ml of blood. The word used for driver is "Chalak" though it is not so clearly written but is readable if read in the context in the challan. Even otherwise, it is clear from the evidence of PW1, the challaning officer as well as the PW2, the official witness HC Pratap that it was the accused, Bansh Rakahan, who was, in fact, challaned. The official witnesses, DL 9SAC 1549 4 i.e., the prosecution witnesses in the present case have also identified him in the court. Even otherwise, accused has admitted in his statement under section 313 Cr. PC that he was driving the vehicle at the said time and place. Hence, there is no dispute about the identity of the accused or the fact that he was subject to breath test as mandated by section 185 of MV Act. He has further argued that in the crossexamination of PW1, the challaning officer says that while challaning the accused besides PW2, two other constables were also present. However, they have not been made the witnesses deliberately. Again, this argument does not find favour with the court as it is not necessary under the settled law laid down by the Supreme Court that everybody at the spot of the crime has to be made a witness. It is not necessary to make a person a witness if he does not come in the category of material witness. Even otherwise, section 134 of The Evidence Act 1872 provides that no particular number of witnesses shall in any case be required for the proof of any fact. In Raja v. State, (1997) 2 Crimes 175 (Del) it has been held that it is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The same law has been reiterated in Lallu Manjhi v. State of Jharkhand AIR 2003 SC 854. Further, the Ld. Counsel says that the PW2 was not present at the time when the accused was stopped for checking. The accused was already apprehended prior to the reaching of PW2 along with PW1 who is the challaning officer. He has also not seen that before the alcometer was applied on the accused for breath test the instrument or alcometer was not set at neutral and so the alcometer slip Ex. PW1/B reflects the alcohol content level of some other person. This argument is also not a convincing one. The reason is that on a perusal of the evidence of PW2 he sounds to be a truthful witness. PW2 says that though he was not present at the time when the DL 9SAC 1549 5 accused was stopped, he brought the alcometer for checking alcohol content of the accused. He further says that the accused was checked before him by the challaning officer who, in fact, applied the instrument after air pressure was blown from the mouth of the accused. He has also identified the accused in the court. Hence, it is clear that PW2 was, in fact, present when after stopping of the vehicle of the accused for checking, alcometer was applied on the accused and the level which reflects in the alcometer report Ex. PW1/B is 361 mg per 100 ml of blood. As far as the argument of defence counsel that PW2 was not present at the time of checking the vehicle his clear statements in examination and replies in cross examination sound to be true and highly credible. He clearly admits that PW2 was not present at the time when the vehicle was stopped for checking and does not know about whether the instrument was set at neutral level before taking the breath test. However, this statement does not in any way cast any doubt on the genuineness of the test as it was conducted by PW1 challaning officer and not by PW2 HC Pratap. No question as to whether the instrument was neutral or not has been asked from PW1 who, in fact, took the breath test of the accused on alcometer. Hence, in absence of the question put to PW1 and anything else on the record to suggest that the breath test was not proper, genuineness of the test is established. PW2 seems to have told the fact as they really were. He denies any knowledge about the state of alcometer as to its neutrality but he says that the accused was tested in his presence. As far as the argument that the single witness PW2 has not seen meter reading does not affect the authenticity of the test as alcometer slip has been proved by PW1 and PW2 which alcometer slip is Ex. PW1/B. Nothing has come on record to show that the instrument was not working properly or that the officials PW1 and PW2 have fudged the test. Section 114 illustration (e) also says that officials acts are presumed to have in regularly and DL 9SAC 1549 6 duly performed. In absence of anything on the record, the acts of the prosecution witnesses even though they might be the officials who challaned the accused it cannot also be presumed that there was dishonesty in their act. As far as the amount of evidence necessary to sustain the conviction law is clearly laid down in section 134 Evidence Act and the citations mentioned hereinabove.
There is a consistent line of judgments of the Apex Court and various High Court to the effect that mere nonjoining of public witnesses as independent source of corroboration does not affect the credibility of evidence of official witnesses and conviction can be based solely upon the evidence of official witnesses. Only condition is that it should be scrutinized carefully and accepted with caution if no taint of falsehood is found. Independent corroboration is only a rule of prudence and not a rule of law. The testimony of official witnesses is to be approached like the evidence of any ordinary witnesses. If evidence of such a witness is found entirely trustworthy, there is no need to seek corroboration. If they have no animus or hostility against the accused, their testimony would be relied upon to sustain conviction. The evidence of official witnesses must be discarded or accepted on merits of evidence and not merely because they are interested though as abovesaid caution should be applied in scrutinizing their evidence. These observations were made in Hazari Lal v. State (Delhi Administration), AIR 1980 SC 873 and Hari Obula Reddy v. State of Andra Pradesh, AIR 1981 SC 82. In State of Kerala v. M M Methew & Anr., 1978 Cr.L.J. it was held that " Presumption that evidence of official witnesses is to be considered as tainted runs counter to the basic principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servant they are interested in the success of the case. DL 9SAC 1549 7 Their evidence is to be tested and weighed by applying basic test of broad human probabilities." In Ahir Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217 it was held that it is wrong approach on the part of Magistrates to assume that government official abused his position and power in all cases as a matter of course where there is no reasonable basis for it to assume so from the evidence and surrounding circumstances. He should do so only when it appears that government servant like police officer, traffic official etc. abused his position. Otherwise, it is not a judicial approach to distrust and suspect them without grounds therefore. In Sh. Shadi Singh v. State of UT, Chandigarh 1981, Ch.Cr. C. 86 (P&H) it was held that the testimony of the official witness is to be corroborated by independent evidence is only a rule of prudence and not rule of law. If it were otherwise, it would be possible for any guilty person to escape punishment by resorting to device of bribing recovery witnesses. Merely on the ground that the conviction was based only upon the evidence of an official witness, it cannot assailed.
6. The Ld. Defence counsel also pleads that as the accused was arrested it was mandatory for the police officials to get the medical examination conducted for his blood test to ascertain whether the accused was driving at the said public place in a drunken condition. The requirement of blood test is discussed in sections 202 to 204 of MV Act.
Section 202 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 or section 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 DL 9SAC 1549 8 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.
Section 203 Breath tests (1) A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorised in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has any reasonable cause to suspect him of having committed an offence under section 185:
Provided that requirement for breath test shall be made (unless it is made) as soon as reasonably practicable after the commission of such offence. (2) If a motor vehicle is involved in an accident in a public place and a police officer in uniform has any reasonable cause to suspect that the person who was driving the motor vehicle at the time of the accident had alcohol in his blood or that he was driving under the influence of a drug referred to in section 185 he may require the person so driving the motor vehicle, to provide a specimen of his breath for a breath test
(a) In the case of a person who is at a hospital as an indoor patient, at hospital,
(b) in the case of any other person, either at or near the place where the DL 9SAC 1549 9 requirement is made, or, if the police officer thinks fit, at a police station specified by the police officer:
Provided that a person shall not be required to provide such a specimen while at a hospital as an indoor patient if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of a specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.
(3) If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under subsection (1) or subsection (2), that the device by means of which the test has been carried out indicates the presence of alcohol in the person's blood, the police officer may arrest that person without warrant except while that person is at a hospital as an indoor patient. (4) If a person, required by a police officer under subsection (1) or sub section (2) to provide a specimen of breath for a breath test, refuses or fails to do so and the police officer has reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest him without warrant except while he is at a hospital as an indoor patient.
(5) A person arrested under this section shall while at a police station, be given an opportunity to provide a specimen of breath for a breath test there. (6) The results of a breath test made in pursuance of the provisions of this section shall be admissible in evidence.
Explanation. For the purposes of this section "breath test", means a test for the purpose of obtaining an indication of the presence of alcohol in a person's blood carried out, on one or more specimens of breath provided by that person, by means of a device of a type approved by the Central Government, by notification DL 9SAC 1549 10 in the Official Gazette, for the purpose of such a test.
Section 204 Laboratory test. (1) A person, who has been arrested under section 203, may, while at a police station, be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if,
(a) it appears to the police officer that the device, by means of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or.
(b) such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:
Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not.
(2) A person while at a hospital as an indoor patient may be required by a police officer to provide at the hospital a specimen of his blood for a laboratory test
(a) if it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or
(b) if the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police officer has reasonable cause to suspect him of having alcohol in his blood:
Provided that a person shall not be required to provide a specimen of his DL 9SAC 1549 11 blood for a laboratory test under this subsection if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.
(3) The results of a laboratory test made in pursuance of this section shall be admissible in evidence.
Explanation. For the purposes of this section, "laboratory test" means the analysis of a specimen of blood made at a laboratory established, maintained or recognised by the Central Government or a State Government.
7. The relevant portions of these provisions are discussed hereinafter. Section 202 subsection 1 provides that the blood test is mandatory only when after arrest, the accused is not released from custody. Then, the police officer shall have his medical test done by a registered medical practitioner within two hours of his arrest. If within such time, such test is not got conducted then the accused has to be released. However, in this case, the accused after arrest was immediately released on personal bond of Rs. 3,000/ by the Challaning Officer.
Section 203 sub section 1 provides the police officials the power to stop any person driving or attempting to driving motor vehicle in a public place to stop the vehicle and give one or more specimens of breath for breath test. As above said, such breath test in this case has been done by an instrument approved by the Government Agency vide a notification. Section 203 clause 6 makes this evidence admissible. Section 203 subsection 2 provides about the power the police officials to take breath sample for the breath test in case the accused is found involved in accident. Section 203 subsection 3 gives power of arrest if accused on a test under section 203 subsection 1 & 2 is found to have alcohol content in his blood. It is DL 9SAC 1549 12 discretionary power to arrest as is clear from the word "may" used in section 203 subsection 3. Section 204 provides as to how the accused who has been arrested and taken to the police station be dealt with. In that case, the police official has the discretion to have blood test conducted for detection of alcohol, if earlier the breath test conducted on him showed presence of alcohol content in the blood of the accused or the accused has failed or refused to submit to the breath test. In this case, all the above said provisions for conducting the blood test by a Registered Medical Practitioner in a laboratory are not applicable as the accused was immediately released on a personal bond and not taken to police station after arrest. Even otherwise, the police official has discretion to have or not to have the blood test conducted as the word used is "may" in section 203 as well section 204. Hence, blood test is not mandatory in the present case.
8. Hence, in view of the above said discussion, I convict the accused under section 185 of Motor Vehicle Act. I also convict the accused for driving the above said vehicle without driving licence, insurance, PUCC under sections 3/181, 146/196, 115 (CMVR)/ 190 of Motor Vehicles Act and nonproduction of these documents under section 130/177 of Motor Vehicles Act and also driving the vehicle without helmet under section 129/177 of MV Act.
Let accused be heard on the point of quantum of sentence.
Copy of this judgment be given to the accused free of cost.
Announced in the open court (Ashok Kumar)
on 24.06.2011 Metropolitan Magistrate03,
Traffic, South District,
Saket, New Delhi.
DL 9SAC 1549 13
In the Court of Sh. Ashok Kumar, Metropolitan Magistrate03 (Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL 9SAC 1549 Challan No.: 451768 Circle :VVC U/S :185, 3/181, 146/196 & 129/177 State Versus Bansh Rakhan Present: Accused Bansh Rakhan Singh S/o Sh. Jagmohan Singh R/o House No. 72/09, Kishangarh, Vasant Kunj also at House No. 64, ground floor, BlockF, Ber Sarai, New Delhi in person. Order on Quantum of Sentence The accused is convicted vide separate judgment under the above said provisions. Ld. Defence counsel says that the accused is a poor person with a family to support and this aspect be considered while imposing sentence. The accused is working as a security guard and has two minor girls as daughters aged 4 years and other daughter is of one and a half years.
In view of the above said, the Ld. defence counsel prays that benefit of Probation of Offenders Act be given to him. However, I am of the view that in perspective of increasing instances of fatalities on the road, the offence of drunken driving needs to be dealt with some seriousness. The accused has been found guilty of driving the above said vehicle with high alcohol content of 361 mg per DL 9SAC 1549 14 100 ml of blood while under section 185 of MV Act 30 mg per 100 ml of blood is the permissible limit.
I have convicted the accused under section 185 of MV Act for drunken driving in a public place and for this offence I sentenced the accused to three days' of simple imprisonment and he is sentenced to no fine along with the substantive sentence. For the offence of driving without licence under section 3/181 of MV Act, the accused is sentenced to a fine of Rs. 200/, in conviction under section 146/196 of MV Act, he is sentenced to a fine of Rs. 500/, for driving without PUCC, the accused is admonished under section 115 Central Motor Vehicle Rules and he is also admonished under section 130 read with 177 of MV Act. Total fine payable is Rs. 700/ and in default of payment of fine, he is sentenced to two days' of simple imprisonment. Fine paid.
The bail bond and surety stands discharged. Documents be disposed of, as per rules.
Accused be supplied with the judgment and this order free of cost. File be consigned to record room, after necessary compliance.
Announced in the open court (Ashok Kumar)
on 24.06.2011 Metropolitan Magistrate03,
Traffic, South District,
Saket, New Delhi.
DL 9SAC 1549 15