Delhi District Court
State vs . Pradeep Malik 1 Challan No. ... on 8 September, 2015
IN THE COURT OF MS. NABEELA WALI, MM (TRAFFIC),
EAST, KARKARDOOMA COURTS, DELHI
Challan No. VKC1692007401
Challan Date: 16.05.2014
Vehicle No. DL4CJ2760
State ..................... Complainant
Versus
Pradeep Malik,
S/o Sh. V.P. Singh,
R/o H. No. DA/43D,
Hari Nagar, LIG Flats,
Delhi110064. ........................ Accused
Offence complained of u/sec 185 of the Motor Vehicles Act, 1988
Plea of the Accused : Accused pleaded
not guilty
Date of commission of offence : 16.05.2014
Date of institution of the Case : 17.05.2014
Date on which arguments heard : 25.08.2015
Date of decision : 08.09.2015
Final Order : Convicted
State Vs. Pradeep Malik 1 Challan No. VKC1692007401
JUDGMENT:
1. Facts shorn of unnecessary details as unfolded by the prosecution are, on the evening of 16th May, 2014 at about 7.52 PM at ISBT Anand Vihar, accused Pradeep Malik was driving a Maruti Car bearing registration Number DL4CJ2760. On checking through the Breath Analyzer, accused was found to be having 735.8 mg of alcohol per 100 ml of blood in his body, thus exceeding the permissible limit of 30 mg/100 ml. of blood. Therefore, the accused was challaned under section 185 of the Motor Vehicles Act , 1988(hereinafter MV Act).
2. Consequent to the institution of the complaint, cognizance of the offence was taken on 17.05.2014. On 17.05.2014 the accused appeared before the court and was admitted to bail as the offence was bailable in nature.
3. On 03.06.2014, notice u/s 251 Cr. P.C. was framed and read over and explained to the accused in vernacular, to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused, prosecution examined three witnesses namely challaning officer ASI Jaswant Singh as PW1, Constable Deepak State Vs. Pradeep Malik 2 Challan No. VKC1692007401 Kumar as PW2 and Constable Shiv Dutt as PW3. The Breath Analyzer Report was exhibited as Ex. PW1/A and challan was exhibited as Ex. PW1/B. The OSS form is Exhibited as PW1/C and the computerised copy of challan is exhibited as PW1/D. Copy of DD entry dated 16.05.2014 showing seizure of the vehicle is Ex.PW1/E. The copy of Rawangi register dated 16.05.2014 showing the Rawangi of ASI Jaswant Singh and Ct. Shiv Dutt at S.No.25 is Ex. as PW1/F. The copy of Duty Roaster for May, 2014 for circle VKC showing presence of Ct. Deepak at point ISBT, Anand Vihar is Ex. as PW2/A.
5. PW1/Challaning Officer ASI Jaswant Singh in his examinationinchief has stated that on 16.05.2014 he alongwith Ct. Shiv Dutt and Ct. Deepak was on vehicle checking duty from 08.00 AM to 10.00 PM. At about 7.407.45 PM he was present at Road No.56, Kaushami cut, Opposite ISBT Anand Vihar and stopped one car bearing No. DL4CJ2760 which was coming from the side of Kaushambi and going towards Telco. As per PW1 smell of alcohol was oozing out of driver's mouth, whose name came to be known as Pradeep Malik. The content of alcohol when checked with the breath analyser machine was found to be 735.8 mg/100 ml. The breath analyser report which is Ex. PW1/A bears the signature of PW1 at pointA. PW1 correctly identified the accused present in the court. During his crossexamination, PW1 admitted that breath analyzer is tested before using it. He however stated, that he does not know what is the maximum reading State Vs. Pradeep Malik 3 Challan No. VKC1692007401 which can be given by the breath analyzer. He further admitted that accused/driver handed over all the documents of the vehicle to him. PW1 stated that he had stopped the accused/driver at about 7:40 pm and took around ten minutes in making the challan. PW1 stated that he had asked the accused driver to blow the breath in the breath analyzer only once. He also stated, that he did not get the accused medically examined and did not make any other challan for drunken driving that day. As per PW1 the accused/driver was in a drunken condition and was unstable at the time of making the challan and was not able to stand properly. Further, as per PW1 the accused/driver was speaking irregularly after pauses. PW1 stated that he made him sit in an auto rickshaw and instructed the driver of auto rickshaw to drop the accused/driver to his residential address. PW1 also admitted that the accused had signed the challan. As per PW1 there were two other constables with him when he prepared the challan. PW1 could not tell the device ID of the breath analyzer and stated that the Device ID number is printed on the challan. PW1 denied the suggestion that the breath analyzer was not working properly. PW1 denied knowledge of whether the breath analyzer machine showed different readings for different types of alcohol. As per PW1 the breath analyzer by which the reading was taken was with him from 5:00 pm to 10:00 pm on that day. PW1 also stated that he had used the breath analyzer machine several times before the day of challan. PW1 denied the suggestion that he had prepared a false challan and that he was deposing falsely.
State Vs. Pradeep Malik 4 Challan No. VKC1692007401
6. Constable Deepak Kumar deposed as PW2. He stated that on 16.05.14 he alongwith ASI Jaswant Singh and Ct. Shiv Dutt was on vehicle checking duty at Kaushambi Cut (the road coming from Kaushambi to Anand Vihar Bus Terminal). At about 7.40 PM he stopped one Maruti 800 car of white colour having registration No. DL4CJ2760 coming from Kaushambi side. While checking the documents of the said vehicle, the driver was found smelling of liquor and in a drunken state, on which they had taken the reading from breath analyser and the driver was found to be having 735.8 ml./100 ml. of alcohol in his blood. As per PW2 challaning officer ASI Jaswant Singh thereafter challaned the accused. PW2 correctly identified the accused before the court.
PW2 during his crossexamination stated that his duty hours in May, 2014 were from 3.00 PM to 11.00 PM. As per PW2, when he stopped the offending vehicle, the driver though drunk was in proper standing condition. As per PW2 the speed of the offending vehicle was approx. 2530 kmph and was being properly driven and not in zigzag manner. Also as per PW2 he did not see the accused driver talking on his mobile phone while driving and denied the suggestion that he had stopped the offending vehicle because the accused driver was talking on the phone. PW2 admitted that he had stopped the offending vehicle alongwith Ct. Shiv Dutt. However, PW2 could not say whether the accused driver had signed the challan in his presence. As per PW2 Alcohol Meter Machine was in his possession and State Vs. Pradeep Malik 5 Challan No. VKC1692007401 breath was blown only once by the accused/driver in the Alcohol Meter Machine. PW2 admitted that alcohol meter slip mentions the number of the alcohol meter machine and that the machine number does not get changed. PW2 admitted that the offending vehicle was seized and the accused driver was made to sit in an auto though he does not remember the registration number of the auto. PW2 stated that he does not remember whether the ZO had prepared any challan after the said challan as he had gone to PS Vivek Vihar after seizing the offending vehicle. As per PW2 the accused driver was talking properly and was not taken to any hospital in his presence. As per PW2, ZO had prepared only one challan under section 185 MV Act in his presence on that day. PW2 further stated that he could not say what is the maximum limit of (measurement of) alcohol by the alcohol meter as he had not used this alcohol meter machine before. PW2 denied the suggestion that the present challan was falsely made or that the accused was stopped while he was talking on his mobile phone.
7. Constable Shiv Dutt deposed as PW3. He stated that on 16.05.14 he was posted at Vivek Vihar Circle and drive was being conducted against drunken driving. He was present alongwith ASI Jaswant Singh and Ct. Deepak. At about 7.45 PM they stopped a car bearing registration No. DL4CJ2760. As per PW3 accused was smelling of alcohol and was checked by ZO Jaswant Singh with State Vs. Pradeep Malik 6 Challan No. VKC1692007401 breath analyzer machine. As per the machine, the level of alcohol present in the blood of driver was 735.8 mg/100 ml. The accused was then challaned.
PW3 also stated that accused was responding in a proper way when he had inquired from him. Also as per PW3 on the given day all were in uniform. PW3 further deposed that, he could not say about the (upper) limit of alcohol in the blood after which a person can stand properly and the minimum and maximum limit of the alcohol meter. As per PW3 it took about four to five minutes in preparing the challan. PW3 denied the suggestion that he was not aware of the offence for which the challan was prepared or that they had stopped the accused because he was talking on his mobile phone and that he was deposing falsely.
8. After completion of the prosecution evidence, statement of the accused under section 313 of the Code of Criminal Procedure was recorded to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. The accused in his statement admitted that he was driving the car bearing No. DL4CJ2760 on the day and time of incident, however, he denied being checked by the breath analyzer for presence of alcohol in his blood. He also denied that he was not able to stand properly and speak cogently and that he was under the impression that he had been challaned for not producing the Registration Certificate and it is only when he came to the court he was informed that he was State Vs. Pradeep Malik 7 Challan No. VKC1692007401 challaned for offence of drunken driving. Accused denied all the allegations and pleaded false implication.
9. Accused after his examination u/s 313 Cr.P.C examined DW1 Sh. Ashutosh Gaur in his defence. As per testimony of DW1 at about 7.00 PM on 16.05.2014 accused Pradeep Malik visited his home to lend him money. It is further stated by DW1 that accused stayed at his place for about 10/15 minutes and had tea with him and his family. DW1 further deposed that accused Pradeep Malik was not in drunken state when he visited his place and had himself drove down to his place by car. During crossexamination by Ld. APP, DW1 stated that Accused Pradeep Malik left his place at about 7.157.20 PM. It was further stated by the witness that accused Pradeep Malik was not drunk and was not smelling of alcohol and was in perfect state and talking properly. DW1 further stated that he could not say if accused Pradeep Malik had drunk after leaving his place.
10. After conclusion of evidence, final arguments were addressed by both the parties.
Arguments on behalf of prosecution
a) Consistent testimonies of Prosecution Witnesses:
It is submitted by Ld. APP for the State that all prosecution witnesses have supported the case of prosecution and deposed on the lines of challan. As per Ld. APP testimony of challaning officer i.e. PW1 stands corroborated by the testimony State Vs. Pradeep Malik 8 Challan No. VKC1692007401 of PW2 & PW3 and that all prosecution witnesses have correctly identified the accused before the court.
b) Signature of accused on the challan, Breath Analyzer Report and OSS form It is submitted by Ld. APP that the Breath Analyzer Report Exhibited as PW1/A & the challan Exhibited as PW1/B alongwith other documents have been duly proved by prosecution witnesses and that these documents bear the signature of the accused which do not stand disputed by him.
c) Presence of witnesses on the spot It is the submission of Ld. APP that presence of all witnesses at the spot at the date and time of incident has been duly proved by Ex.PW1/F & PW2/A and the same remains undisputed by the defence. It is further the submission of Ld. APP that accused himself has not denied the presence of all three prosecution witnesses at the spot in his examination u/s 313 Cr.P.C.
d) Breath test admissible in evidence It is the submission of Ld. APP for the State that accused was found smelling of alcohol and on being checked by breath analyzer was found to be having alcohol in excess of the legal limit of 30 mg per 100 ml. of blood. It is further the submission of Ld. APP that the breath analyzer report which shows presence of 735.8 mg of alcohol in 100 ml. of blood of accused is perse admissible in evidence under sub section (6) of S.203 of the MV Act.
State Vs. Pradeep Malik 9 Challan No. VKC1692007401 Ld. APP for the State has further contended that accused in his statement u/s 313 Cr.P.C has admitted to driving the offending vehicle at the date and time of incident. It is further the submission of Ld. APP that DW1 in his testimony has not ruled out the possibility of accused consuming alcohol, after leaving his place.
Hence, Ld. APP argued that the prosecution has been able to prove the case against the accused beyond reasonable doubt.
11. Arguments on behalf of Defence On the other hand, counsel for accused has argued on the following grounds:
a) Contradiction in testimony of prosecution witnesses Ld. Counsel for accused submitted that there are material contradictions in the testimony of prosecution witnesses. It is the submission of Ld. Counsel that while PW1 in his testimony has stated that accused was in a drunken condition and unstable and unable to stand properly and speaking irregularly after pauses, PW2 & PW3 on the other hand submitted that accused driver was in a proper standing condition and was talking properly. Counsel for accused further submitted that while PW1 in his testimony stated that he got the offending vehicle stopped, PW2 deposed that the car was stopped by him.
State Vs. Pradeep Malik 10 Challan No. VKC1692007401
b) Improper Calliberation Certificate
It is the submission of Ld. Counsel for the accused that while the device ID as mentioned on the breath analyzer report is KY804877, the Calliberation Certificate sent to the court alongwith the challan is for some other machine bearing ID No.KY805365 dated 18.03.2014.
c) 16/05/2014 being a Dry Day It is the submission of the counsel for the accused that 16/05/2014 i.e. the day of incident was declared as a 'Dry Day' and hence there was no possibility of accused consuming alcohol on that day. Counsel for the accused has filed a copy of Notification No. F.10(56)/9697/IMFL/EX/5567 dated 04.04.2014 issued by Government of NCT of Delhi in support of his submission.
d) No Medical Examination of accused It is the submission of Ld. Defence counsel that despite the fact that the alcohol meter showed presence of high quantity of alcohol, no medical examination of the accused was got conducted by police officials.
e) No Public Witness Counsel for the accused has further argued that as no public witness was made to the challan, hence the testimony of prosecution witnesses cannot be relied upon. Counsel for accused has filed before the court a judgment of the Hon'ble Punjab & Haryana High Court titled as Jahangir & Anr. Vs. State of Haryana, (1997) Cr.LJ 48) in support of his submission that the burden lies on the State Vs. Pradeep Malik 11 Challan No. VKC1692007401 prosecution to prove the guilt of the accused beyond reasonable doubt and that the prosecution has failed in discharging the same in the present case.
12. I have heard both the sides and have perused the records of the case. It is an accepted principle of criminal jurisprudence that the onus to prove its case in criminal trial is always on the prosecution and the said onus is to be discharged by leading evidence beyond reasonable doubts. This flows from the cardinal principle that the accused is presumed to be innocent unless proven guilty and is entitled to the benefit of every reasonable doubt.
13. In order to appreciate the rival submission of both sides, it is pertinent to refer to relevant provisions of the act.
Section 185 - Driving by a drunken person or by a person under the influence of drugs.
The essentials of S.185 of MV Act in order to constitute the offence are as follows: a. Whoever, while driving, or attempting to drive, a motor vehicle;
b. Is tested by a breath analyzer; and
c. After breath analyzer test, is found to be having alcohol exceeding
30 mg per 100 ml of blood.
State Vs. Pradeep Malik 12 Challan No. VKC1692007401
Further Section 203 of the M.V. Act describes the procedure for breath test. a. A police officer in uniform or an officer of the Motor Vehicles Department.
b. May require any person driving to provide one or more specimen of breath for breath test as soon as practicable.
c. On reasonable suspicion of commission of offence u/s 185M.V Act. d. Results of breath test made in pursuance of the provisions shall be admissible in evidence.
14. Let us consider the first constituent for commission of offence U/s 185 of M.V Act, which is that the accused should be proved to have been driving or at tempting to drive the motor vehicle. The testimony of prosecution witnesses on this facet is clear and coherent and all prosecution witness have correctly identified the accused before the court. Also accused in his statement U/s 313 Cr.P.C has stated that he was driving the offending vehicle on the day and time of incident. Thus the fact that accused was driving the offending vehicle stands duly proved.
15. Secondly with respect to examination of accused by breath analyzer, the ac cused in his statement U/s 313 Cr.P.C denied being checked by the same. However all prosecution witnesses have testified before the court that after stopping the of fending vehicle the accused was subjected to a test by the breath analyzer. Nothing State Vs. Pradeep Malik 13 Challan No. VKC1692007401 has been put forth by the defence to doubt the testimony of prosecution witnesses on this aspect and thus the same stands accepted by the court.
16. Thirdly on checking with the breath analyzer machine the content of alcohol was found to be 735.8mg/100 ml of blood of the accused and well beyond the per missible limit. The same is reflected in the breath analyzer report exhibited as PW1/A and duly signed by the challaning officer i.e PW1 and the accused. The ac cused though in his examination denied signing the same, however nothing has been put before the court by the defence to raise suspicion on this important piece of prosecution evidence which stands admitted per se U/s 203(6) of M.V Act. Fur thermore all prosecution witnesses have consistently deposed that on checking ac cused was found to be having 735.8mg/100ml of alcohol in his blood.
17. The submission of Ld. Defence Counsel that the calliberation certificate at tached with the challan is for a different breath analyzer, does not hold much ground for several reasons. Firstly, the, M.V Act does not mandate the requirement for a calliberation certificate. Secondly the calliberation certificate filed has not been relied upon by the prosecution. Thirdly the breath analyzer report exhibited by the prosecution mentions the date of last calliberation of the breath analyzer machine as 'May 10, 2014' and the next due date as 'May 10, 2015'. Thus it is State Vs. Pradeep Malik 14 Challan No. VKC1692007401 clear that on the day of incident i.e on 16/05/2014 the breath analyzer machine was calliberated.
18. Further, as is testified by PW3 before the court that at the time of incident all three police officers, including himself, were in uniform. Also as per testimony of all prosecution witnesses breath test on the accused was conducted soon after the accused was stopped and found smelling of alcohol. Both these stance remain un rebutted by the accused and thus consecrate that the 'breath test' of the accused was conducted in compliance of the necessities of section 203 M.V Act. Thus, the breath analyser report Ex. PW1/A stands stoutly in evidence against the accused.
19. It is next argued by counsel for the accused, that no medical examination of the accused was conducted to support the allegation of presence of alcohol in his blood. The same is, however not a mandate as per the M.V Act and it is the discre tion of the police officer to subject the accused to a laboratory test. Also the sub mission of the counsel that 16/05/2014 was a 'dry day' is trivial and insignificant. The contradiction alleged in the testimony of prosecution witness with respect to the conduct of the accused at the time of incident is also inappreciable in the present facts of the case.
State Vs. Pradeep Malik 15 Challan No. VKC1692007401
20. Besides the argument of the Ld. Defence counsel that no public witness was made to the challan, is not worthy of much attention as it is settled proposition that the testimony of police persons should be treated in the same manner as testimony of any other witness.
The Hon'ble Supreme Court in the case of Girja Prasad (Dead) by Lrs Vs. State of M. P. 2007(7) SCC 625 while particularly referring to the evidence of a police officer, said that "it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration." In the present case, there is no material or evidence on record to show that the prosecution witnesses had any rea son to falsely challan the accused.
State Vs. Pradeep Malik 16 Challan No. VKC1692007401
21. Thus, in view of the overall conspectus of the case, I am of the opinion that prosecution has thus, proved its case beyond reasonable doubt against the accused. Hence, accused Pradeep Malik is held guilty and convicted for the offence punish able u/sec 185 of the M.V. Act.
22. Copy of the judgment be given Dasti to the accused.
23. Let the convict be heard on the quantum of sentence.
Announced in the open (NABEELA WALI)
Court on 08.09.2015 MM (Traffic), East
KKD, Delhi, 08.09.2015
This judgment contains 17 pages & each page bears my signature.
(NABEELA WALI) MM (Traffic), East KKD, Delhi, 08.09.2015 State Vs. Pradeep Malik 17 Challan No. VKC1692007401