Delhi District Court
Witnesses, "Balraj Singh vs . State Of Punjab" The Hon'Ble Punjab & ... on 30 May, 2011
IN THE COURT OF SUDHIR KUMAR SIROHI MM (TRAFFIC) -02,
SAKET COURT, DELHI.
Challan No.820918
Vehicle No. DL3CJ 5162
Unique Case ID
State ...Complainant
Versus
Mr. Ashish Kumar, S/o Sh. Surender Kumar,
R/o Flat No. 5, No.1 Link Road,
Jungpura Extension,
New Delhi ...Accused
Date of offence : 29.10.2010.
Date of institution of Challan: 30.10.2010.
Date on which order was reserved: 23.03.11
Date of decision : 30.05.2011.
Decision : Conviction.
Present: Ld. APP for state.
Accused with Ld. Counsel Sh.V.K. Pandey.
JUDGMENT
1. The brief facts of the case are that on 29.10.2010 at about 09:15 pm accused DL3CJ 5162 page 1/7 Ashish Kumar was driving a car bearing bearing number DL3CAJ 5162 (hereinafter called offending vehicle) near Defence Colony Market while he was coming from defence colony side towards Kotla Mubarkpur. When accused was tested by alcohometer (Breath analyzer) bearing no. B1602, he was found to have 499 mg/100 ml of alcohol as per breath alcohol analyzer report bearing number 0145 and accused failed to produce the insurance of offending vehicle on the spot. Accordingly ASI/ZO Yeshvir Singh issued the challan u/s 185 motor Vehicle Act for drunken driving and u/s 146/196 of Motor Vehicle Act for insurance. Accused was arrested u/s 202 of MV Act and released on personal bond in the sum of Rs. 3,000/- by the challaning officer from the spot.
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 Procedure1973 on 03.03.2011 to which accused pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused, two prosecution witnesses namely PW1 A.S.I/ZO Yeshvir Singh & PW2 Traffic Inspector Jaswant Singh stepped in to witness box. The PW1 proved the challan as Ex. PW1/B and breath alcohol analysis report as Ex. PW1/A. Both the witnesses were cross-examined, therefore the evidence of prosecution was closed by order dated 21.03.2011. Both the witnesses correctly identified the accused in court.
4. The statement of accused u/s 313 of Code of Criminal Procedure 1973 was recorded and entire incriminating circumstances appearing in evidence against the accused were put to him. The accused stated that he wants to lead defence evidence.
5. PW1 in his deposition stated that on 29.10.2010 at about 09:15 pm, accused was DL3CJ 5162 Page 2/7 plying the offending vehicle from Defence Colony side towards Kotla Red Light and when accused was checked by Alcohomter by Traffic Inspected (PW1) in his presence, accused was tested positive for drunken driving and was found to have 499 mg/100ml of alcohol as per breath analysis report (Ex. PW1/A) while the permissible limit is 30 mg/100 ml alcohol. PW1 further stated that he took the signature of accused on breath alcohol analysis report at point B and accused failed to produce the insurance of the vehicle on the spot. PW1 further stated that vehicle of the accused was handed over to one Mr. Mayank Mohan as accused was under the influence of alcohol and signature of Mayank Mohan was taken at point E on challan (Ex. PW1/B). PW1 in his cross-examination stated that accused was the first person on that day to be test on alcohometer and the cap used during breath analysis test was not sent to laboratory but breath alcohol analysis report was attached with the challan. PW1 further stated that accused was in control of vehicle and was driving at a moderate speed. PW2 in his deposition stated that on 29.10.2010 accused was driving the offending vehicle from defence colony market towards Kotal red light on Bhishm Pitamah Marg and accused was smelling for alcohol therefore, breath analyzer test was conducted on accused by him and as per breath analysis report accused was found to have 499 mg/100 ml of alcohol after that the challan was made by PW1 and the test was conducted in presence of PW1. PW2 in his cross-examination stated that he did not remember the number of alcohometer but its number and serial of test is printed on Ex PW1/A. PW2 further stated that accused was tested positive on alcohometer and red light blink in alcohometer after the test of a accused. PW2 further deposed that after alcohometer test blood test of accused was not done. PW2 also deposed that alcohometer is a technical device and he learnt from his fellow colleague how to use alcohometer.
DL3CJ 5162 Page 3/76. Accused in his defence produced DW1 Raju Kanojia who produced the insurance of vehicle bearing policy No. 73307664 issued by Iffco-Tokio General Insurance Co. Ltd having validity from 20.07.2010 to 19.07.2010 as Ex. DW1/A. Opportunity of cross-examination was given to State but not availed.
7. 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 as deposition of prosecution witnesses and such report is admissible u/s 203(6) of MV Act and accused was having 499 mg /100ml of alcohol in his blood. Ld. APP also stated that prosecution has proved the guilt of accused beyond reasonable doubt. 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) That the cap which was used for breath analyzer test was not sent to laboratory therefore, material piece of evidence is lost and whole prosecution story stands nowhere and u/s 202 MV Act blood test of accused was mandatory but not done so, it raises doubt on story of prosecution.
(b) No public witness was made, therefore prosecution witness cannot be relied upon.
8. Now, I am dealing with contentions raised by ld. defence counsel one by one:
Contention A: Admittedly, the cap of breath analyzer was not sent to laboratory but plain reading of section 185 (a) read with 203 (6) of Motor vehicle Act shows that breath analysis report is admissible in evidence and if the amount of alcohol exceeds 30 mg/100 ml under breath analyzer test then offence u/s 185 is made DL3CJ 5162 Page 4/7 out. Therefore, even if the cap of breath analyzer is not sent to laboratory then also breath alcohol analyzer report exhibited as PW1/A can be safely relied upon due to section 203 (6) of MV Act. Under Section 202 accused was arrested but he was released on personal bond in the sum of Rs. 3000/- 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 resealed from custody. Reading of proviso of section 202 (1) states that only 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.
Contention B : Admittedly no independent witness is made in the present case but it only is not sufficient enough to throw the deposition of prosecution witnesses, "Balraj Singh Vs. State of Punjab" the Hon'ble Punjab & Haryana 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 DL3CJ 5162 Page 5/7 taken any defence that the Traffic Officials was having prior inimical relations with him. Therefore, the testimony of prosecution witnesses cannot be ignored.
9. 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" 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 30mg/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 30mg per 100ml of blood then the accused is punishable as per section 185 of MV Act. Perusal of the testimony of Challaning Officer PW1 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 499mg alcohol in 100ml of blood. PW2 also 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 but accused produced in his defence valid insurance of the vehicle Ex. As DW1/A. DL3CJ 5162 Page 6/7
10.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 499 mg alcohol per 100ml of blood. Accordingly the accused is convicted of offence punishable u/s 185 and acquitted u/s 146/196 of MV Act 1988 . Let the accused be heard on quantum of sentence.
Pronounced in open court.
SUDHIR KUMAR SIROHI M. M DELHI 01.06.2011 DL3CJ 5162 page 7/7