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Delhi District Court

Singh vs . State Of Punjab" The Hon'Ble Punjab & ... on 9 August, 2011

   IN THE COURT OF SUDHIR KUMAR SIROHI MM (TRAFFIC) -02,
                SAKET COURT, DELHI.



   Challan No.837410

   Vehicle No. DL3SBT 8898

   Unique Case ID
   State                                              ...Complainant

                                 Versus

   Gautam Kumar,

   S/o Sh. Ramesh Kumar,

   R/o F-273, Shri Durga Vihar, Lakarpur, Faridabad,                ...Accused

   Date of offence : 17.06.2011.

   Date of institution of Cnallan: 18.06.2011.

   Date on which order was reserved: 29.07.2011.

   Date of decision : 09.08.2011.

   Under Section: 3/181 and 185 of MV Act.

   Decision : Conviction.

   Present: Ld. APP for state.

   Accused with Ld. Counsel Smt. Divya.

JUDGMENT

1. The brief facts of the case are that on 17.06.2011 at about 08:30 pm accused Gautam Kumar was driving a motorcycle bearing number DL3SBT 8898 (hereinafter called offending vehicle) on Mathura Road while coming from DL3SBT 8898 Page1/6 Ashram side towards Appolo Hospital side. When accused was tested by alcohometer (Breath analyzer) by traffic officials, he was found driving under the influence of alcohol as per breath alcohol analysis report, he was found to have 302 mg of alcohol per 100/ml of blood while the permissible limit u/s 185 of Motor Vehicle Act (MV Act) is 30 mg/100ml of blood and the driving licence of accused has expired on 20.11.2009. Accordingly, ASI/ZO Vijay Singh issued the challan for drunken driving and driving without driving licence. Accused was arrested u/s 202 of MV Act and released on personal bond in the sum of Rs. 5,000/- by the challaning officer.

2. The accused appeared in the court and was released on bail as the offences were bailable. The accusation was served on the accused u/s 251 Code of Criminal Procedure 1973 on 03.06.2011 to which accused pleaded not guilty and claimed trial.

3. In order to prove the guilt of the accused, two prosecution witnesses namely PW1 SI/ZO Vijay Singh and PW2 Ct. Satdev stepped into witness box. The PW1 proved the challan as Ex. PW1/B, breath alcohol analysis report as Ex. PW1/A and Offence Seizure slip as Ex. PW1/C. Both witnesses were cross-examined, therefore the evidence of prosecution was closed by order dated 15.07.2011. Both witnesses correctly identified the accused in court.

4. The statement of accused u/s 313 of Code of Criminal Procedure (Cr.P.C.) 1973 was recorded and entire incriminating circumstances appearing in evidence against the accused were put to him. Under section 313 Cr.P.C accused stated that he was not made aware of reading of alcohometer and stated that he had beer not alcohol. Under Section 313 Cr.P.C accused stated that his driving licence has expired. Under section 313 Cr.P.C statement accused further stated that he does DL3SBT 8898 Page 2/6 not want to lead defence evidence.

5. PW1 in his deposition stated that on 17.06.2011 at about 08:30 pm, he was on duty with constable Satdev under supervision of traffic inspector, Sarita Vihar and accused was coming on offending vehicle from Ashram side towards Appolo Hospital red light side. PW1 further deposed that foul smell of alcohol was coming from mouth of accused therefore, he was checked by alcohometer and found to have 302 mg/ 100 ml of alcohol as per Ex. PW1/A. PW1 also deposed that the driving licence of accused was expired one. PW1 in his cross-examination denied the suggestion that the accused was wrongly challaned. PW2 in his deposition stated that on 17.06.2011 at 08:30 pm he was on duty under the supervision of traffic official, Sarita Vihar and accused was driving the offending vehicle while coming from Ashram side towards Appolo Hospital side. Accused was stopped and found smell of alcohol which was coming from his mouth and PW1 conducted alcohometer test on accused in his presence. PW2 further deposed that as per breath alcohol analysis report accused was found to have 302 mg/100 ml of alcohol. PW2 in his cross-examination stated that accused was driving normally when he was stopped by the ZO and PW2 denied the suggestion that the accused was falsely implicated.

6. I have heard Ld. APP for state and ld. defence counsel. Ld. APP for state submitted that the accused was driving the offending vehicle under the influence of alcohol which has been proved by the breath alcohol analysis report and such report is admissible u/s 203(6) of MV Act and accused was having 302 mg /100ml of alcohol in his blood. Ld. APP further submitted that accused was driving the vehicle with expired driving licence. Ld. APP also stated that prosecution has proved the guilt of accused beyond reasonable doubt. Ld. APP further submitted that accused in his statement u/s 313 Cr.P.C also admitted that his DL3SBT 8898 Page 3/6 driving licence has expired. Ld. APP submitted that DL of accused bearing no. P03082001277812 has expired on 20.11.2009. Ld. defence counsel argued that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Ld. defence counsel further argued that:

(a) No public witness is made in this case and traffic officials are interested witness , so the story of prosecution cannot be relied upon.

(b) That the medical test u/s 203 and 204 was not conducted by registered medical practitioner.

Now, I am dealing with contentions raised by ld. defence counsel one by one:

Contention A: In the present case although admittedly no independent witness was joined but the testimony of prosecution witness cannot be completely ignored simply on the ground that no independent witness has been joined. In, "Balraj Singh Vs. State of Punjab" the Hon'ble Punjab & Harayana High Court as well as in Md. Altaf Vs. State of NCT, dated 30.11.07 the Hon'ble Delhi High Court held that "in case, independent witness was available but not joined by the investigating officer the story is not to be ignored. Question is why police officials have deposed against the appellants/accused when he had no enmity with the police officials. Statement of police officials without any independent corroboration inspires no confidence, this submission of the defence counsel seems to be not correct one. In case independent witness is not joined than evidence on file is to be scrutinized with great and caution mere non-joining of dependent witness is not fatal. Similarly in the present case the accused has not taken any defence that the Traffic Officials was having prior inimical relations with him. Therefore, the testimony of prosecution witnesses cannot be ignored. Hence, contention of Ld. Defence Counsel is without merit.

Contention B: Under Section 202 accused was arrested but he was released on personal bond in the sum of Rs. 5000/- at the same time when he was arrested. Proviso of Section 202 (1) states that if a person is arrested in connection of offence punishable u/s 185 then he shall be within two hours of his arrest be subject to medical examination as per section 203 & 204 of Motor Vehicle Act by registered medical practitioner failing which accused shall be released from custody. Reading of proviso of section 202 (1) states that if medical examination is not done within two hours of the arrest of accused then accused has to be released from custody and joint reading of section 203 & 204 along with section 202(1) proviso nowhere makes medical test compulsory along with breath analyzer test moreover, accused was released on bail on the spot itself. Therefore, this contention of ld. Defence counsel is without merit.

8. For offence u/s 185 following ingredients has to be fulfilled A) accused should be driving or attempting to drive a motor vehicle.

B) He must be tested by breath analyzer.

C) After breath analyzer test, accused was found to have more than 30mg of alcohol per 100ml of blood.

In judgment delivered by Karnataka High Court titled as "Rajavalse M. Vs. State 1999 Cr.L.J 58" it has been held that to hold the accused guilty u/s 185 MV Act the prosecution has to prove that the blood of the accused contained alcohol exceeding 302 mg/100ml of blood detected in a test by breath analyzer. Thus test by breath analyzer is sufficient to show the quantity of alcohol in per 100 ml of blood. If it is found on such test that the alcohol content was more than 30 mg per 100ml of blood then the accused is punishable as per section 185 of MV Act.

Perusal of the testimony of Challaning Officer PW1 and PW2 shows that accused was driving the offending vehicle under the influence of alcohol which was proved by breath alcohol analyses report as Ex. PW1/A and same is admissible in evidence as per section 203(6) of MV Act. Ex. PW1/A shows that accused was having 302 mg alcohol in 100ml of blood. PW2 deposed in consonance with PW1 and both prosecution witnesses deposed in line with the allegations laid down in challan and it has been proved that accused was driving the vehicle under the influence of alcohol and the driving licence of accused bearing No. P03082001277812 issued by NCT of Delhi has expired on 20.01.2009 which is already on record attached with challan.

9. Therefore, in view of the aforesaid discussion testimony of the prosecution witnesses comes out as clear, convincing, reliable and inspires the confidence of the court. Hence the allegations against accused have been proved beyond reasonable doubt and it has been proved that accused was driving the vehicle with 302 mg alcohol per 100ml of blood with expired driving licence. Accordingly the accused is convicted of offence punishable u/s 185 and 3/181 of MV Act 1988 . Let the accused be heard on quantum of sentence.

Pronounced in open court.

SUDHIR KUMAR SIROHI M. M DELHI 09.08.2011 DL3SBT 8898 Page 6/6