Delhi District Court
State vs . on 18 March, 2014
IN THE COURT OF SH. SANTOSH KUMAR SINGH METROPOLITAN
MAGISTRATE (TRAFFIC) DWARKA COURTS: DELHI
CHALLAN NO: 714097
CIRCLE: MAYAPURI
VEHICLE NUMBER: DL 8SAX 7630
U/S: 185, 146/196, 128/177, 129/177 and 132/149 of Motor Vehicles Act
IN THE MATTER OF:-
STATE
VS.
KUNWAR PAL
S/O SH. KANHIYA LAL
R/O RZP-2/225, P BLOCK, MATA MANDIR ROAD, DAYAL PARK,
WEST SAGARPUR, NEW DELHI
Date of institution : 25.04.2013
Date of reserving Judgment/Order : 03.03.2014
Date of pronouncement of Judgment/Order: 18.03.2014
JUDGMENT
Brief statement of reasons for the decision of the case :
1. As per challan the accused was driving the vehicle bearing registration number DL 8SAX 7630 (Scooter) on 10.04.2013 at about 21.12, and going towards Lajwanti Chowk from Mayapuri. Upon suspicion he was stopped.
Breath test was conducted and result came out to be 440 mg/100ml. It is also STATE VS. KUNWAR PAL Page 1 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 alleged that accused was carrying two pillion riders without helmet. Accused also failed to produced valid insurance policy of the vehicle at the spot and also he misbehaved with the police party. Upon these facts accused was challaned under section 185, 128/177, 129/177, 132/149 and 146/196 of Motor Vehicle Act 1988 (herein after referred as MV Act). The DL of accused and RC of vehicle was impounded.
2. That the accused moved an application to contest the matter, therefore, bail was granted to the accused as offences being bailable. Thereafter, notice of particulars of offences under section 185, 146/196, 128/177, 129/177 and 132/149 of Motor Vehicles Act was framed, read over and explained to accused to which he pleaded not guilty and claimed trial.
3. Prosecution examined three witnesses to prove its case. PW1 Inspector R. K. Rathi, TI Mayapuri, PW2 Ct. Manjeet Chahal, No. 3381 and PW3 ASI/ZO Kailash Tomar.
4. During examination of Prosecution Witnesses, PW1 deposed that he was posted as Traffic Incharge in Mayapuri Circle on 10.04.2013. he along with PW3 ASI Kailash Chand and other staff were carrying out anti drunken drive near Maya Enclave, Mayapuri Road. He further deposed that during checking accused was stopped and it was found that there were two pillion riders without helmet. It was found that accused was drunk and breath test was conducted and reading was 440mg/100ml. Accused could not produced insurance policy, therefore, ZO prosecuted him under these sections 185, 146/196, 128/177, 129/177 and 132/149 of Motor Vehicles Act in my presence.
STATE VS. KUNWAR PAL Page 2 of 14VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097
5. PW2 Ct. Manjeet Chahal deposed that anti drunken drive was being carried out near Maya Enclave, Mayapuri Road under the supervision of PW1. Accused was stopped and it was observed that two pillion riders were sitting without helmet. Accused was under drunken condition and thereafter, checked with breath analyzer/alcometer and reading was 440 mg/100 ml. Accused was not carrying the insurance certificate with him and PW3 prosecuted the accused u/s 185, 128/177, 129/177 and 146/196 MV Act in my presence. Challan is already Ex. PW1/A.
6. PW3 deposed that during anti drunken drive near Maya Enclave Mayapuri Circle. The accused was driving two wheeler scooter bearing no. DL 8SAX 7630 with pillion rider. He was driving the scooter without helmet and stopped for checking. He was found drunk and was checked with the alcometer/breath analyzer and his reading was 440 mg/100 ml. He was not carrying the insurance certificate with him and he prosecuted him u/s 185, 128/177, 129/177 and 146/196 MV Act. Challan is already Ex. PW1/A bearing his signature at point A. Alcometer slip is Ex. PW3/A bearing his signature at point A. All PWs correctly identified the accused namely Kunwar Pal during their examination in Court.
7. In cross examination of prosecution witnesses, PW1 deposed that there were 5/6 people were carrying out the anti drunken drive on that day. He further deposed that he was present at the spot and checked the reading of STATE VS. KUNWAR PAL Page 3 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 alcometer. He further deposed that no blood sample/urine sample was taken. He deposed that driver was checked for drunken driving. He denied the suggestion that the person named Shiv Sagar, who was the pillion rider was in drunken condition and breath analyzer test was conducted upon him. He further denied that breath analyzer report was torn up in the process of taking. He further denied that Shiv Sagar was beaten up by the police party at the spot. He denied that he was deposing falsely.
8. In cross examination PW2 he deposed that there were at about six persons in the team. He deposed that he stopped the vehicle after forcing him (accused) to stop. He deposed that there were three persons on the vehicle without helmet and the accused was driving the vehicle. He observed that smell of alcohol was coming from the mouth of the accused. Challaning officer conducted the breath analyzer test upon the accused and accused blew only once in the breath analyzer. He deposed that no urine/blood sample of accused was taken. He further deposed that breath analyzer test result/alcometer slip was torn up by the accused. He deposed that no person beat up by the police party. He denied the suggestion that accused was not driving the vehicle in drunken condition. He denied the suggestion that due to the reason of torn up of breath analyzer report by third person namely Shiv Sagar was beaten up by the police party. He denied the suggestion that breath analyzer test was conducted upon the third person named Shiv Sagar and not upon the accused.
9. In cross examination PW3 deposed that there were around 3-4 police persons at the spot. He deposed that accused was driving the vehicle with two other pillion riders. He deposed that smell of alcohol was coming from STATE VS. KUNWAR PAL Page 4 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 the mouth of the accused driver and Breath Analyzer Test was conducted upon the accused. He deposed that accused blew once in the alcometer and the result was 440mg/100 ml. He deposed that first result generated by the Breath Analyzer was torn up by the accused and second slip was also generated from the same device. He denied the suggestion that accused took the slip to observe the result. A court question was put to PW3 whether he called 100 number and did he get FIR registered against them. He answered 'No'. He deposed that no blood/urine test of accused was taken. He denied the suggestion that breath analyzer test was conducted upon Shiv Sagar who was the pillion rider. He deposed that vehicle was handed over to one person whose name was not remembered to him although mobile number of that person is on challan. He denied the suggestion that he was deposing falsely.
10. After the prosecution evidence closed, the statement of accused under section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused. In which he admitted that he was driving the vehicle but he denied that he was under drunken condition. He stated that alcometer test does not belongs to him but the same bears his signatures. He admitted that he was carrying two pillion riders without helmet and without insurance policy. He voluntarily admitted that it was correct that breath analyzer test was conducted upon him and neither he nor his friend misbehaved with the police party. He admitted that his DL and RC of the vehicle were impounded in this case. He further denied that breath analyzer report was torn up by him. Thereafter, police party gave him the challan and directed him to appear in the court. Accused wanted to lead evidence in his defence. So, matter was fixed for DE.
STATE VS. KUNWAR PAL Page 5 of 14VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 Thereafter, the matter was fixed for DE but accused did not produce any defence witness and took unnecessary adjournments to delay the proceedings in this case. The court also imposed cost on the accused for causing unnecessary delay. Even more opportunities were given to him for recording of his defence evidence but he failed and DE stood closed and the matter was fixed for arguments.
11. During the course of arguments, Ld. APP for the state argued that there are no contradictions in the testimonies of PWs. He argued that accused did not produce any defence evidence despite the fact that many opportunities were given to him. He argued that accused had already admitted that there were two pillion riders on the vehicle without helmet. He argued that alcometer breath analyzer slip/alcometer slip was torn up intentionally by the accused because he knew that quantity was much more higher. He argued that torn up breath analyzer slip is on record. He argued that second breath analyzer slip/alcometer slip could be generated from the same device through a process but nothing has been questioned about this by the defence. He argued that accused had admitted his signature on breath analyzer slip and hence, its an admissible evidence as per section 203 MV Act. Therefore, blood test/urine test is not necessary. He concluded his arguments submitting that prosecution has proved the case against the accused beyond the reasonable doubt and the accused be dealt with as per law.
12. Ld. defence counsel argued that there are contradictions in the testimonies of PW1 and PW3. He argued that accused was not under drunken condition but his friend Shiv Sagar was drunk and breath analyzer test was STATE VS. KUNWAR PAL Page 6 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 conducted upon him and not upon the accused. Ld. Counsel submitted that reading 440mg/100 ml is not possible in one blow and atleast it takes three times to take the average reading. He argued that second breath analyzers slip which is on record was taken out bearing the same reading i.e. 440Mg/100ml without taking the breath of the accused which shows that breath analyzer test was defective. He further argued that in such situation when reading is 440mg/100ml it would not be possible for accused to stand properly. He argued that breath analyzer test was not conducted by registered Medical Practitioner as per the mandate of section 202 MV Act. He submitted that first breath analyzer slip was in the hand of Shiv Sagar who wanted to see the reading and during that period the same was torn up in the process of taking and police party beaten up Shiv Sagar. He further argued that neither urine test nor blood test of the accused was done which could have shown the presence of alcohol in the blood of the accused. Ld. Counsel submitted that accused is innocent and be acquitted from the case.
13. Arguments heard. Record perused. Ld. Counsel for the accused has taken the defence on the following points :-
1. Accused was not driving the vehicle under drunken condition.
2. Breath analyzer test not conducted by registered Medical Practitioner as per mandate of 202 MV Act.
3. No urine/blood test of the accused was conducted.
4. No public person was made a witness.
It is established rule of Criminal Jurisprudence that while appreciating the prosecution evidence the minor discrepancy and contradiction can not render STATE VS. KUNWAR PAL Page 7 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 the entire prosecution evidence useless and irrelevant unless such contradiction adversely affect the core of prosecution case.
14. Section 185 and section 202 of M. V. Act are reproduced as below :-
"As per section 185 M. V. Act driving by a drunken person or by a person under the influence of drugs. - Woever, 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 analyzer, or
(b) is under this 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.
Explanation - For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper STATE VS. KUNWAR PAL Page 8 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 control over a motor vehicle".
"As per section 202 of M. V. Act 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, 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 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.
203 (1) Breath Test:- A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorized 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 STATE VS. KUNWAR PAL Page 9 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 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) ............................
(3) If it appears to a police officer in uniform, in consequence of a breath test carried out by him on any person under sub-section (1) or sub-section (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) ...........................
(5) ...........................
(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 in the Official STATE VS. KUNWAR PAL Page 10 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 Gazette, for the purpose of such a test.
Reading these sections i.e. 185, 202 and 203 (1), (2), (3)of M. V. Act together, it is clear that whosoever drives or attempts to drive the motor vehicle under the influence of liquor is a punishable offence, if the content of alcohol in the blood exceeds 30mg/100ml detected by Breath Analyzer or who drives under the influence of drug to such extent which makes the driver incapable to exercising proper control over the vehicle. As per section 185 M. V. Act, even for the first offender, law prescribes imprisonment for a term which may extend to six months or with fine which may extend to Rs. 2000/- or with both.
Section 202 of M. V. Act which gives power to the police officer in uniform to arrest a person, without warrant, who has committed an offence u/s 184, 185 and 197 M. V. Act. Proviso attached to this section says that if any person is arrested u/s 185 M. V. Act then the police officer shall, within two hours of his arrest, subject him (arrestee) to medical examination referred to u/s 203 and 204 M. V. Act by Registered Medical Practitioner failing which he shall be released from custody.
Perusal of section 203 of M. V. Act talks about breath test which states that a police officer in uniform may ask a person driving or attempting to drive a motor vehicle in public place to provide one or more specimen of breath test, if such officer has reasonable cause to suspect that driver as committed offence u/s 185 M. V. Act. Proviso attached to section 203 M. V. Act requires that breath test be made soon after commission of such offence.
15. First defence regarding accused was not driving the vehicle under drunken condition is concerned. Perusal of file and perusal of testimonies of STATE VS. KUNWAR PAL Page 11 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 PWs categorically established that accused was driving the vehicle. Accused has nowhere denied his signature on breath analyzer report as well as on challan. Perusal of file also reveals that accused intended to produce defence evidence and various opportunities were given to him but he failed to produce any defence witness. Thereafter, DE was closed. Therefore, there is no doubt that accused was not driving the vehicle. Therefore, this defence is not maintainable.
16. Second defence regarding breath analyzer test not conducted by registered Medical Practitioner as per mandate of 202 MV Act is concerned. Perusal of proviso attached to section 202 provides that breath test and laboratory test be conducted by registered medical practitioner. And perusal of section 203(1) empowers a police officer in uniform to conduct breath test and the result of breath test carried out by the police officer is an admissible piece of evidence as per the mandate of section 203(6) MV Act. Therefore, this defence is not maintainable in the eyes of law.
17. Third defence regarding no urine/blood test of the accused was conducted is concerned. There is no necessary for conducting blood/urine test because section 203(3) is very much clear that breath test is admissible u/s 203(6) MV Act, therefore, this defence does not have any legal force.
18. Fourth defence regarding no public person was made a witness is concerned. In this regard I am of the view that no public person wants to become a witness in police case because they fear that they would be harassed by police and would face a lot of problems or inconvenience in attending the STATE VS. KUNWAR PAL Page 12 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 courts. Moreover the Hon'ble Supreme Court of India has held in various judgments that public witness is not necessary in each and every case because usually people do not come forward to become a witness.
Moreover, in the present case, all prosecution witnesses are police personnels who are public servants. PW-3 being the Challaning Officer prepared the challan in discharge of official duty and other PWs were also on duty. As per Indian Evidence Act 1872, all PWs are competent witnesses and their testimonies are reliable and corroborative in nature. There is no law which makes their testimonies dis-believable, hence their testimonies are credible. Hence, the arguments of Ld. Counsel for accused that no public person was made a witness in the present case by the challaning officer seems to be in- convincing.
19. Its a fact that drunken driving is supposed to be a menace to the society at large. Many innocent people have lost their precious life on road because of the drivers who drive the vehicle under drunken condition. Persons who drive the vehicle under inebriated condition do not respect the traffic rules and rule of law which are essential to regulate the civil society. Even drunken drivers have no respect to the life of innocent road users who either ply their small vehicles or simply walk on the road. Rule of law is made to maintain peace and harmony in society. Every citizen is duty bound to obey traffic rules as well as Rule of law. Drunken drivers show disrespect and disregard to the established traffic rules as well as Rule of law. Commission of such offences cannot be taken as a cup of tea and offenders cannot be allowed to drive/ply their vehicles on road under drunken condition. Accidents due to drunken driving can be avoided if such offenders are punished as per established Rule STATE VS. KUNWAR PAL Page 13 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097 of law. Therefore, in my view drunken driving should not be taken lightly.
In this present case accused was driving the Scooter under the high influence of alcohol without insurance policy itself shows that he has no respect towards the rule of law and to the life of innocent road users. Moreover, driving the Scooter under the influence of liquor put the life of other innocent road users in danger and causes grave inconvenience and threat to other small vehicles plying on the road.
20. In view of what have been discussed above prosecution has established a strong case against the accused and the defence has not been able to shake the credit of the prosecution witnesses. From the corroborated testimonies of prosecution witnesses and the Breath Alcohol Analysis Report, it is apparent that alcohol content in blood of accused was found exceeding 30mg/100ml. Prosecution has established the case against the accused beyond reasonable doubt, therefore, this court hold the guilt of accused stands established beyond reasonable doubt. Thus, accused is hereby convicted for the offence punishable u/s 185, 128/177, 129/177, 132/149 and 146/196 of Motor Vehicle Act.
(ANNOUNCED IN THE OPEN COURT ON 18.03.2014) This Judgment contains 14 Pages and each paper is signed by me.
(SANTOSH KUMAR SINGH) METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT (TRAFFIC-01) DWARKA COURTS, DELHI/18.03.2014 STATE VS. KUNWAR PAL Page 14 of 14 VEHICLE NO. DL 8SAX 7630 CHALLAN NO: 714097