Delhi District Court
High Court In Sanjeev Nanda vs The State In Crl.A.No. 807 Of 2008 ... on 24 April, 2015
IN THE COURT OF MS. SONAM SINGH, METROPOLITAN
MAGISTRATE (TRAFFIC), SOUTH DISTRICT, SAKET COURT,
NEW DELHI
In the matter of:
Vehicle No. : DL9SS3169
Challan No. : 23360214514
Circle : DFC
U/S. : Section 185, 146/196 and Section 115/190(2) of Central Motor
Vehicle Rules, 1989 read with Motor Vehicles Act, 1988.
State
Versus
Kishore
S/o Sh. Laxman Dass
R/o L74, CBlock,
DDA Janta Flats, Saket
New Delhi
Date of Filing the Challan :08.12.2014
Arguments Heard on :26.03.2015
Date of Judgment :24.04.2015
Plea of the accused :Not Guilty
Final Order :Convicted U/s Section 185, 146/196 of Motor
Vehicle Act, 1988 and Section 115/190(2) of
Central Motor Vehicle Rules, 1989 read with
Motor Vehicles Act, 1988.
Present: Ld. APP for the State.
Accused in person alongwith Ld. Counsel Sh. J.K. Verma and
Sh. V.K. Pandey.
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J U D G M E N T
Brief reasons for the decision :
1. Brief facts of the case as per the Prosecution Vide this judgment, I shall dispose of the present challan filed by the prosecution under Section 185, 146/196 of Motor Vehicles Act, 1988 (in short "M.V. Act") and Section 115/190(2) of Central Motor Vehicle Rules, 1989 (in short "CMVR") read with M.V. Act.
The facts in brief, as per the prosecution are that on 07.11.2014 at about 20:04 PM, the accused, namely Kishore was driving one private vehicle , a two wheeler, bearing registration no. DL9SS3169 at Aurobindo Marg, INA Market. He was driving the vehicle from Safdarjung Madarsa side and going towards AIIMS side. The traffic police stopped him for the purposes of checking. He was examined on an alcometre device and on such examination he was found under the influence of alcohol. As per the breath analysis report exhibited as Ex.PW2/A, the alcohol content found in his blood on such alcometre examination was 588.5mg/100ml, which is beyond the permissible limit of 30 mg/100ml provided under Section 185 M.V. Act. The accused also failed in producing a valid Insurance Certificate and Pollution under Control Certificate (PUC) of the vehicle to the traffic police . Therefore, the accused was challaned for the abovementioned violations vide challanbearing no.23360214514, which is exhibited as Ex.PW1/A. Vehicle No. : DL9SS3169 Challan No. : 23360214514 2 of 17
2. Cognizance by the Court, Admission to bail and Framing of Notice Subsequent to filing of the challan before the court, cognizance of the offence was taken by this court on 08.12.2014 and since the offences were bailable, the accused was admitted to bail on furnishing of bail bond and surety bond in a sum of Rs.15,000/. On 08.12.2014 itself, Notice of accusation was served upon the accused U/s 251 Code of Criminal Procedure, 1908 (in short "CrPC") and it was read over and explained to the accused in vernacular, to which he pleaded not guilty and claimed trial.
3. Prosecution Evidence
(i) Examination of Witnesses In order to prove and substantiate its case, the prosecution examined two (2) witnesses, namely:
Sr. No. Designation and Name of the Witness Role in the present case
1. PW1 Const. Sunil Kumar Witness to the present challan
2. PW2 SI Harjeet Singh Challaning Officer
(ii) Documents on record PW1 and PW2 also proved the challan on record and the breath analysis report which are exhibited as Ex PW1/A and Ex PW2/A respectively.
(iii) Brief Scrutiny of the Evidence
(a) PW1 Const. Sunil Kumar in his Examinationinchief identified the
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accused in the court. He deposed that he did not remember the date of offence and the exact time of offence but stated it to be between 7.00 p.m. to 10.00 p.m. in the evening. He also deposed that the accused was apprehended at INA Market.
Further, he deposed that the vehicle was plying from Safdarjung Madarsa to AIIMS. He further stated that he did not remember the vehicle number. He further deposed that accused was drunk and driving the vehicle and that three or four constables including him stopped him on the direction of ZO SI Harjeet Singh. He also stated that subsequently, the Challaning Officer checked the alcohol content by using the alcometer device. PW1 further deposed that he did not remember the exact documents which were not found with the accused but it may have been PUC Certificate and Insurance Certificate. He further deposed that the challan was prepared by ZO SI Harjeet Singh exhibited as Ex. PW1/A bearing his signatures at point "X".
In his CrossExamination, PW1 deposed that he was posted on the date of offence at INA market. He further testified that on that day, there was a special drunken drive on the spot. PW1 further deposed that there were three or four constables, one ZO and one TI who were part of the drunken drive team. PW1 also deposed that the accused was stopped by them but did not remember which constable stopped him. He further stated that he himself took the accused to the ZO who was standing 2 or 3 steps from them. He deposed that he did not remember as to how many persons were stopped and checked by them on that point. He stated that the drive started at 7.00 p.m. till 10.00 p.m. He also deposed Vehicle No. : DL9SS3169 Challan No. : 23360214514 4 of 17 that the accused was checked by the alcometer device which was inserted in the mouth of accused and before inserting it in the mouth of the accused, the ZO changed the pipe of the machine and attached a new one. PW1 deposed that only one long blow of breath was asked by the ZO to the accused to be blown out and the same was done by him. He also testified that the meter had the reading of '0' before it was inserted in the mouth of the accused t. He further stated that no print out of the '0' reading was taken out. PW1 further deposed that no fitness report of machine was available at the spot. PW1 negated the suggestions of the Ld. Defence Counsel that the machine was faulty, that it was not fit for the alcometer test and that the accused was not drunk. He deposed that he did not remember the exact distance from which he saw the accused. He further stated that they stopped the vehicle by gestures and took out the keys of the vehicle and the accused did obey the direction to stop the vehicle. He also negated the suggestion of Ld. Defence Counsel that the accused was driving the vehicle in a perfect condition and not rashly and negligently. He also negated the suggestion that he was not present on the spot and the breath analysis report is of another person. He admitted that the challan was prepared in his presence and has been signed by him. PW1 deposed that he does not know about the personal bond of Rs.5000/ which has been written on the challan. He further stated that the alcohol content in the report was more than 500 but did not remember the exact quantity of alcohol content. He further negated the suggestion that he was not present on the spot and the same was signed on the coercion of the ZO. PW1 further deposed that the ZO did not take the accused for the medical test after arresting him under Section 202 of M.V. Vehicle No. : DL9SS3169 Challan No. : 23360214514 5 of 17 Act and the vehicle was not released to the accused but to somebody else, but he did not remember who it was. He further negated the suggestion that the accused was made to blow thrice into the alcometer device. He further testified that the accused was coming from the right direction on his own side and did not ply the vehicle in one way. He negated that suggestion that he was deposing falsely.
(b) PW2 SI Harjeeet Singh, Challaning officer in his ExaminationIn Chief, deposed that on 07.11.2014, at about 08.00 p.m., he noticed that there was a vehicle bearing registration No.DL9SS3169 coming from Safdarjung Airport and going towards AIIMS. PW2 further deposed that on daily basis, there is checking which is done by the traffic personnel between the timings from 07.00 p.m. to 10.30 p.m. PW2 identified the accused standing in the court. PW2 further deposed that Const. Sunil stopped the vehicle and brought the accused to him. PW2 stated that he was standing at Aurobindo Marg, INA Market. He further tetstified that he checked the accused with the alcohol test and the reading as per the alcohol meter test was about 588 mg/100ml. He further stated that the accused driver did not have two documents i.e. Insurance Certificate and Pollution under Control Certificate. PW2 also stated that he challaned the accused by way of challan which is exhibited as Ex.PW1/A bearing his signature at point Y. In his CrossExamination, PW2 deposed that there was one more passenger sitting with the accused driver in his vehicle and that the vehicle was a motorcycle. PW2 negated the suggestion of Ld. Defence Counsel that he did not Vehicle No. : DL9SS3169 Challan No. : 23360214514 6 of 17 see the accused driver was driving the vehicle. He deposed that he did not remember as to what clothes the accused driver was wearing. He further testified that accused stopped when he was directed by them to stop. Further, he deposed that the accused was driving the vehicle at normal speed. Thereafter, he again said, that the accused was driving at a high speed. He admitted that the accused was brought to him and he checked him for the alcohol test. PW2 further stated that he asked the accused to blow out in the breathometer apparatus and he prepared the challan after conducting the alcohol test. He negated the suggestion of Ld. Defence Counsel that he did not change the pipe of the apparatus and did not see whether the alcometer depicted the zero reading before the test was conducted. PW2 deposed the he did not remember whether he showed the zero reading to anyone else but he filed the certificate alongwith the challan Ex.PW2/A which states that the machine is fit to operate. PW2 deposed that he filed personal bond on which the accused was released, as mentioned in the challan. He further stated that after the arrest, he did not got any medical test conducted. He voluntarily stated that according to him alcometer test is sufficient for the offence of drunken driving. He deposed that he did not know as to the limit, which can be recorded by the alcometer test. PW2 deposed that the constable and he himself were standing nearby, the approximate distance would be around 45 feet and that they were standing at the corner of the road. He further deposed that there were no barricades for the purpose of special checking he. He also testified that he saw the accused driving his vehicle from a distance of 1520 feet and that the Constable Sunil stopped the vehicle of the accused in a routine manner. PW2 negated the Vehicle No. : DL9SS3169 Challan No. : 23360214514 7 of 17 suggestion that the accused driver was not in a drunken condition as he lawfully abided by the directions given by them. He further negated the suggestion that after checking other persons for drunken driving, he did not change the pipe of the alcometer. PW2 further stated that the alcometer is handed over to them before checking takes place and fitness report of the alcometer is not given daily. He further deposed that Ex.Pw2/A states that the alcometer is functioning properly and will function properly from March 18, 2014 to March 18, 2015. PW2 negated the suggestion that the alcometer was faulty and not in a workable condition. He deposed that he did not join any independent public witness at the time of examination by the alcometer. He negated the suggestion of the Ld. Defence counsel that Ex.PW2/A has been filled in a mechanical manner so as to falsely implicate the accused and the details regarding the same are incorrect. He deposed that he did not seal the pipe, which was used in the alcometer test of the accused. He further negated the suggestion of the Ld. Defence counsel that he asked the accused to blow out thrice in the alcometer device and voluntarily stated that they asked him to blow out only once . He also deposed that he did not make the person who was sitting with the accused as a witness in the challan. Further he deposed that the vehicle of accused was released to one Abhay, who was sitting with the accused, after showing a valid driving licence. PW2 negated the suggestion of Ld. Defence Counsel that the breath analysis report is of another person and was filled in with the details of the accused and the challan was prepared before time as the signature of TI, DFC are missing, though TI, DFC was made a witness and also negated the suggestion that he is deposing falsely.
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4. Statement of Accused U/s 313 CrPC After the completion of Prosecution Evidence, on 19/02/15 the Statement of Accused Kishore was recorded U/s 313 CrPC. During the examination of accused U/s 313 CrPC, all the incriminating evidence appearing against the accused was put to him and he was given an opportunity to give an explanation regarding the same. The accused in reply to his examination accepted the fact that he was driving the offending vehicle on the day of incident at Aurobindo Marg, INA Market. He further stated that he was not under the influence of alcohol but was asked to blow out twice into the breathometer and the traffic police did not even change the pipe of the breathometer. He also stated that he was not provided a copy of the reading from the alcometer device nor told about any allegation of drunken driving against him. He admitted that he did not have Insurance certificate and Pollution under Control Certificate on the spot. He stated in his statement that he does not wish to lead any defence evidence.
5. Final Arguments Thereafter, final arguments addressed by both the parties were heard on 26.03.2015 as mentioned below:
(i) Arguments on behalf of Prosecution (a) Consistent testimonies of PWs
The Ld. APP for the State has argued that both prosecution witnesses have supported the case of the prosecution and deposed on the lines of challan. It was also pointed out that both the challaning officer PW2 and the witness to the Vehicle No. : DL9SS3169 Challan No. : 23360214514 9 of 17 challan, namely, PW1 correctly identified the accused in the court and the accused also himself admitted to driving the offending vehicle in his statement U/s 313 CrPC. Further, the prosecution witnesses have exhibited and proved the challan document and alcometer slip issued by them to the accused. He also argued that the witnesses have remained consistent in their depositions regarding the act of drunken driving by the accused and there are no contradictions in their evidence.
(b) Documents do not lie Ld. APP also took up the argument that witnesses may lie but documents will not and the act of drunken driving by the accused is well manifested in the alcometer slip exhibited as PW2/A. He also stated that if the accused felt that the alcometer device was faulty then the burden was on him to prove so and the prosecution was not under a burden to show the fitness certificate of the device.
(c) No Previous enmity or motive Finally, he stated that nothing has emerged from the crossexamination of the said prosecution witnesses, which may suggest that their evidence is tainted in any manner, in the sense that there is any motive due to previous enmity or allegations of corruption Hence, he argued that the prosecution has been able to prove the case against the accused beyond reasonable doubt and he is guilty for drunken driving under section 185 of M.V. Act and for not showing valid Insurance Certificate and Vehicle No. : DL9SS3169 Challan No. : 23360214514 10 of 17 PUC as provided U/s 146/196 and 115/190 CMVR r/w M.V. Act.
(ii) Arguments on behalf of Defence (a) Contradictions in testimonies of PWs
The Ld. Defence Counsel for the Accused submitted that the PWs have contradicted themselves in material particulars of the challans and thus their testimonies are unbelievable. He further stated that PW1 could not even recall the day of the offence and not even the time and thus his testimony was wholly unreliable. He further argued that PW1 had stated that one of the constables out of the three standing at the spot had stopped the accused but PW2 had categorically stated it to be PW1, i.e. Constable Sunil. According to the Ld. Defence Counsel, this was a major contradiction which makes their testimonies doubtful. The Ld. Counsel also stated that PWs had contradicted with respect to the alcohol content, PW1 had stated that alcohol content was above 500mg/100ml but did not remember the exact quantity, while on the other hand, PW2 had stated it to be above 588mg/100ml.
(b) Nonjoinder of independent witness The Ld. Defence Counsel also submitted that the challaning officer deliberately did not join independent witnesses and this omission further raises suspicion on the prosecution story. He also argued that only one constable out of three was made a witness to the challan and this omission of nonjoinder of other witnesses itself made the story of prosecution suspicious and weak. Vehicle No. : DL9SS3169 Challan No. : 23360214514 11 of 17
(c) Faulty alcometer device, unreliable breath analysis report and certificate of fitness not attached with the challan The ld. Counsel further vehemently argued that the breath analysis report was unreliable. He stated that the fitness certificate as per explanation to Section 203 M.V. Act specifically stated that a certificate by central government has to be produced. Thus, the absence of the certificate makes the result by alcometer doubtful.
(d) Medical test under Section 202 M.V. Act should have been mandatorily conducted The Ld. Defence Counsel for the accused further submitted that the accused was not produced for any laboratory test/medical examination which is to be con ducted by a medical practitioner. He submitted once the accused is arrested under Section 202 M.V. Act, his medical examination through a registered medical practitioner under Section 204 becomes mandatory. In the present case, the challaning officer complied with the provisions of Section 203 for a breath test, however, he did not follow the procedure provided under Section 204 of M.V. Act i.e. medical examination of the accused. He emphasized that a medical test report is mandatory to be present on record.
(e) Requirement of other formalities The Ld. Counsel also stated that the accused was not provided the copy of the breath analysis report, which also makes it a grave error. He also stated that Vehicle No. : DL9SS3169 Challan No. : 23360214514 12 of 17 the accused was supposedly admitted to police bail and released on personal bond of Rs 5000 but the prosecution has neither supplied any personal bond copy to the court nor to the accused Thus, the prosecution has failed in proving the guilt of the accused beyond reasonable doubt.
Perusal of Record and Right of Hearing Given To Both The Parties.
6. I have heard both the sides and have perused the records of the case. It is well settled 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. In case, there are any doubts in the prosecution story, its benefit has to go to the accused.
7. Settled law and legal propositions Before dealing with appreciation of facts, evidence and the arguments of both the sides, it would be pertinent to lay down the law regarding the offence of drunken driving U/s 185 M.V. Act
(i) Section 185 M.V. Act Drunken Driving In order to prove an offence U/s 185 of M. V. Act all the following essentials have to be established by the prosecution:
(a) Accused should be driving or attempting to drive a motor vehicle in a public place;
(b) He must be tested by a breath analyzer; and
Vehicle No. : DL9SS3169 Challan No. : 23360214514 13 of 17
(c) After breath analyzer test, the accused is found to have more than 30
mg of alcohol per 100 ml of blood.
• Additionally, it is clearly stated in section 203 (6) of M. V. Act that the blood alcohol analysis report is admissible in evidence.
8. Appreciation of facts, evidence, and arguments on both sides
(i) Section 185 Drunken Driving
(a) With respect to the first ingredient that the accused should be proved to have been driving or attempting to drive the motor vehicle, several contradictions have been pointed out by the Ld. Counsel for the defence but the accused has clearly in his statement U/s 313 stated that he was driving the vehicle on the day of the incident. Even the prosecution witnesses have correctly identified the accused before the court. Thus, the first essential of Section 185 stands satisfied. As per Section 58 of Indian Evidence Act, which states that facts admitted need not be proved. Thus, the argument of the Ld. Counsel for the defence regarding contradictions with respect to place of occurrence does not stand.
(b) As far as the second ingredient is concerned regarding checking by a breath analyzer, the accused has stated in his statement U/s 313 that he was examined by any alcometre device but he was asked to blow out twice in the alcometer device and that the challaning officer did not change the pipe. However, the PWs have deposed on the same lines of the challan and no material Vehicle No. : DL9SS3169 Challan No. : 23360214514 14 of 17 contradiction has arisen to shadow doubt on the testimonies of the prosecution. Secondly, as regards the second defence that breath analyzer was defective is concerned. This defence is not sustainable, as the burden of proof was on the defence to show that the device was defective. It is always a presumption that public officers are performing their duties diligently and honestly with appropriate equipment, the burden to prove the reverse was on the defence. Thus, this argument being vague and bereft of proof cannot stand. Explanation to Section 203 M.V. Act ,as pressed by the ld. Counsel for accused, no where prescribes that the fitness certificate of the device has to be brought to the court and this argument is also unsustainable.
Lastly, the argument by the Ld. Defence counsel regarding laboratory test being compulsory as prescribed under Section 204 M.V. Act. The Hon'ble Delhi High Court in Sanjeev Nanda vs The State in Crl.A.No. 807 of 2008 decided on 20th July 2009 held:
"176. Furthermore, a bare perusal of Sections 203 and 204 of M.V. Act would show that for the purpose of offence committed under Section 185 of M.V. Act, blood sample for laboratory test under Section 204 of M.V. Act may be collected where the breath test provided for under Section 203 M.V. Act could not be done as soon as reasonably practicable after the commission of the crime, due to the omission, refusal or failure of the offender..."
Vehicle No. : DL9SS3169 Challan No. : 23360214514 15 of 17 Thus, it is apparent that the primary test as per Section 185 for drunken driving is the breath test as provided under Section 203 and the blood test is only when the breath test could not be conducted .The conduct of blood test of the accused is the sole discretion of the police officer. Thus, the argument regarding blood test being compulsory is also not sustainable.
(c) Let us examine the third ingredient of the offence. The quantity of alcohol content accused as per Ex PW2/A is 588.5mg/100 ml, which is beyond the permissible limit of 30mg/100ml. The same stands proved by PW2, the challaning officer who conducted the alcohol test on the accused. Further, the contradiction in testimonies of PWs, with respect to alcohol quantity also does not stand. With passage of time, human memory is likely to fade. Further, in this case the contradiction is not so major so as to throw out the case of the prosecution. PW1 had recalled it to be above 500 mg/ 100 ml and PW2 recalled it to be 588 mg/100 ml. Additionally, documentary evidence, i.e . breath analyzer report has been proved by PW2 .Section 203 (6) of M. V. Act clearly states that the blood alcohol analysis report is admissible in evidence.
With respect to the defence raised by the Ld. counsel regarding nonjoinder of independent witnesses is unsustainable in the eyes of law. It is a settled position of law that the testimony of prosecution witnesses/police officials cannot be completely ignored simply on the ground that no independent witness has been joined. In case, where independent witness is not joined, then evidence on file is to be scrutinized with great caution and mere nonjoining of independents witnesses Vehicle No. : DL9SS3169 Challan No. : 23360214514 16 of 17 is not fatal. In the case at hand, the testimony of prosecution witnesses is clear, convincing, reliable and inspires confidence of the court and all the ingredients necessary of prove an offence u/s 185 of M. V. Act has been proved beyond reasonable doubt.
9. Hence, after carefully considering all the material on the record, the evidence by all the prosecution witnesses, the statement of the accused and hearing the arguments on both the sides, the court is of the opinion that the Prosecution has proved its case against the accused Kishore beyond reasonable doubt u/s 185 of M. V. Act. Therefore accused Kishore is convicted for the offence punishable u/s 185 of M. V. Act.
Further, with respect to allegations U/s 146/196 M.V. Act and Section 115/190(2) CMVR r/w M.V. Act , since the accused could not produce valid Insurance Certificate and Pollution Under Control, he stands convicted.
Copy of this judgment be given free of cost to the accused. Pronounced in the open court. Let accused be heard on the point of sentence on 30.04.2015 at 2.00 p.m. Announced in the open court (Sonam Singh) on 24th day of April, 2015 Metropolitan Magistrate, Traffic, South District, Saket, New Delhi.
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