Delhi District Court
Shahnawaz vs The State on 22 August, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
CA No. 382 of 19
Shahnawaz
S/o Sh. Safiq Ahmad
R/o H. No. B192, Gali No. 7
Chauhan Banger, Seelampur
Delhi ......Appellant
Versus
The State ......Respondent
Instituted on : 23.07.2019
Argued on : 08.08.2019
Decided on : .22.08.2019
JUDGMENT
1 The appellant has impugned the judgment dated 20.06.2019 vide which he has been convicted u/s 3/181, 146/196, 129/177 and 185 MV Act and order on sentence dated 21.6.2019 vide which he is sentenced to undergo SI for four months with Shahnawaz Vs. State - CA No. 382 of 2019 1 of 12 fine of Rs. 2000/ u/s 185 MV Act, sentence to undergo SI for one month with fine of Rs. 500/ for the offence u/s 3/181 MV Act, sentence to pay fine of Rs. 1000/ for the offence u/s 146/196, and sentence to pay fine of Rs. 100/ for the offence u/s 129/177 MV Act and in default of payment of fine to undergo SI for 5 days. All the sentences shall run concurrently. Fine is not paid in the court.
2 The appeal is filed on the grounds that there are contradictions in the testimony of prosecution witness which have not been considered by the Ld. Trial Court. It is quite possible that test of some other person was taken. The photograph of the appellant was not taken by the police. The appellant has consumed liquor due to some mental pressure. No public witness was associated by the police. The certificate of the alcoh machine issued by the concerned department is not placed on record to show that the machine was in perfect order. The family Shahnawaz Vs. State - CA No. 382 of 2019 2 of 12 condition of the appellant was not taken into consideration while imposing the sentence. Hence, this appeal. 3 Notice of the appeal is given to the prosecution. 4 The facts of the case are like this. On 21.1.2019 at 7.15 PM at red light, Capt. Gaur Marg, Ring Road, New Delhi appellant was riding one motorcycle bearing Registration No. DL5SBD7844 without protective head gear. The motorcycle was intercepted by traffic police party headed by ASI Mohan Lal, Traffic Circle, LNC. The appellant was found under the influence of liquor. He was asked to produce the documents of the vehicle. The appellant has failed to produced DL, PUC and Insurance Certificate of the motorcycle. The appellant was asked to undergo Breath Analysis Test. The alcohol contents were found to be 105 mg/100 ml of the alcohol which were more than the permissible limit of 30mg/100ml of alcohol. The challan chit was issued to the appellant.
Shahnawaz Vs. State - CA No. 382 of 2019 3 of 12 5 The appellant has put his appearance in the Court. NOA u/s 251 Cr.PC for the offence u/s 3/181, 129/177, 146/196, and 185 MV Act was put to the appellant to which he pleaded not guilty and claimed trial.
6 The prosecution has examined two witnesses. The prosecution evidence is closed. The appellant is examined u/s 313 Cr.PC. wherein he has admitted that he was riding the motorcycle in question. He was standing at Red Light. He was wearing the helmet but did not carry insurance papers. He has consumed liquor under mental pressure. He has called his son on the spot. He has not examined any witness in defence evidence. 7 Ld. Trial Court after perusing the entire evidence on record and hearing Ld. Addl.PP for the State and Ld. Defence Counsel has convicted and sentenced the appellant. 8 PW2 ASI Mohan Lal stated that on 21.1.2019 he was posted as ZO at Traffic Circle, LNC, New Delhi. On that day Shahnawaz Vs. State - CA No. 382 of 2019 4 of 12 he alongwith PW1 Ct. Madan was on duty from 8am to 10pm at Capt. Gaur Marg. At 7.15 PM the appellant was coming from Garhi, Capt. Gaur Marg towards Ashram on motorcycle bearing Registration No. DL5SBD7844. The appellant was driving the motorcycle without helmet. He was stopped. The appellant was found under the influence of liquor. He was asked to produced the documents of the vehicle. The appellant has failed to produce DL, Insurance Certificate and PUC of the vehicle. He has blown into alcohometer and meter reading was brought to zero at that time. The appellant was asked to undergo Breath Analysis Test. The alcohol contents were found to be 105 mg/100 ml of the alcohol which were more than the permissible limit. The print out of the alcohol meter is Ex. PW2/A. The challan chit of drunken driving Ex.PW1/B was issued to the appellant. The challan chit for driving the vehicle without documents and without helmet Ex. PW1/A was also issued. The challan chit to the owner of the Shahnawaz Vs. State - CA No. 382 of 2019 5 of 12 vehicle Ex. PW1/C was also issued. The challan chits were prepared in the presence of PW1. The appellant is identified by him. During cross examination he stated that mouth of the appellant was checked with alcoho meter. The motorcycle was impounded as appellant was not in a position to drive the motorcycle. Appellant has not informed or called his family members. The suggestion is denied that the appellant was wearing the helmet and carrying all the document. 9 PW1 Ct. Madan has corroborated the version of PW
2. During crossexamination he stated that appellant was without helmet. The alcoho meter was checked before appellant was directed blow in it. The result of the blank air test is shown in Ex. PW1/A. The appellant has left the spot after the issuance of the challan chit and no one was called by him.
10 Ld. Counsel for the appellant submitted that mere smelling of alcohol does not mean that he has consumed alcohol. Shahnawaz Vs. State - CA No. 382 of 2019 6 of 12 He further submitted that Breath Analysis Test is not a fool proof test. He further submitted that no public persons has been associated by the police officials though many persons were present there. He further submitted that certificate from concerned department is not file to show that alcoho meter was in perfect working order.
11 Ld. Addl. PP for the State submitted that Breath Analysis Report in itself is a complete report which can be relied upon. He further submitted that medical examination is required u/s 204 MV Act only when a person is arrested but in this case the appellant was not arrested so there is no question to go for medical examination. He further submitted that testimony of PWs is consistent which can be relied upon.
12 Heard and perused the record.
13 Section 185 MV Act says that whoever driving or attempting to drive a Motor Vehicle has in his blood alcohol Shahnawaz Vs. State - CA No. 382 of 2019 7 of 12 exceeding 30 mg/100 ml of blood is under the influence of liquor if it is detected by the test of Breath Analyzer. 14 Section 203 (1) MV Act says that any police officer in uniform or any officer of MV Department may require any person driving or attempting to drive the 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 u/s 185 MV Act. Provided that requirement for breath test shall be made as soon as reasonably practicable after the commission of the offence.
15 The bare reading of Section 203 MV Act shows that one or more specimens of breath for breath test can be taken. The one specimen breath test was taken by means of alcometer. The requirements of Section 203 (1) MV Act have been complied with. Section 203 (5) MV Act says that the result of breath test Shahnawaz Vs. State - CA No. 382 of 2019 8 of 12 shall be admissible in evidence. The breath test analysis taken u/s 203 (1) MV Act is admissible in evidence.
16 The prosecution has examined two witnesses in order to prove its case. The testimony PW1 & 2 clearly shows that on 21.1.2019 at 7.15 PM at Capt. Gaur Marg, they were on duty. No question or suggestion is put to them that they were not on duty. Their testimony clearly shows that the appellant was riding the motorcycle No. DL5SBD7844 without any helmet. The appellant was stopped. No question or suggestion is put to them that they did not stop the appellant at the red light. Their testimony further shows that appellant was directed to produce the document upon which he has failed to produce D/L, insurance certificate and PUC of the motorcycle.
17 Their testimony further shows that appellant was under the influence of liquor. The testimony of PW2 shows the has blown into alcohol meter and meter reading was brought to Shahnawaz Vs. State - CA No. 382 of 2019 9 of 12 zero. Their testimony further shows that appellant was directed to blow in the alcohometer. The contents of alcohol were 105mg/100ml of alcohol. The testimony of PW1 and 2 on the material point has gone unrebutted. Moreover, the appellant has admitted in his statement u/s 313 CrPC that he has consumed alcohol under some mental pressure. The testimony of PW1 & 2 coupled with admission of appellant in his statement u/s 313 CrPC, it is clear that he has consumed alcohol. 18 There is no reason on the part of PW1 & 2 to implicate the appellant. The testimony of PW1 & 2 is consistent without any contradiction on record. Their testimony cannot be viewed with the aid of spectacles in the absence of public witnesses. Their testimony is cogent, convincing and trust worthy which is relied upon.
19 I do not find any infirmity in the judgment dated 20.06.2019 passed by Ld. Trial Court and accordingly, the Shahnawaz Vs. State - CA No. 382 of 2019 10 of 12 judgment of conviction is upheld.
20 Ld. Counsel for the convict submitted convict/appellant is 52 years old. He further submitted that wife of the appellant is suffering from many ailments including cardiac problem. He further submitted that wife of the appellant needs an attendant for her look after. He further submitted that son of the appellant is in a private job. He further submitted that there is no other person in the family to take care of wife of the appellant so request is made to take a leneint view 21 Ld. Addl.PP for the State has urged to the contrary. 22 Heard. The appellant has been earlier convicted on 25.12.2018 for the offence u/s 185 MV Act. The wife of the appellant is suffering from various ailments who allegedly needs an attendant for her look after. The son of the appellant is in private job. Any substantive sentence will definitely affect his wife.
Shahnawaz Vs. State - CA No. 382 of 2019 11 of 12 23 Keeping in view these facts, the order on sentence is modified. He is sentenced to undergo imprisonment till rising of the court with fine of Rs. 3000/ and in default of payment of tine to undergo SI for seven days.
24 Fine paid in the court.
25 Attested copy of the judgment be supplied to the appellant free of cost.
26 TCR alongwith copy of judgment be sent to the Ld. Trial Court for compliance.
27 Appeal file be consigned to record room.
announced in the open court on 22th August, 2018 (SURESH KUMAR GUPTA) Addl. Sessions Judge04 & Spl. Judge (NDPS) South East, Saket Courts,New Delhi Shahnawaz Vs. State - CA No. 382 of 2019 12 of 12