The prosecution for dangerous driving and alcohol consumption fails when the breathalyzer test is improperly conducted and the defendant holds a valid driving license.

ORDER :

1. The petitioner is the accused in Crime No.1637 of 2024 registered at the Medical College Police Station, Thiruvananthapuram for the offence under Section 281 of BNS along with Sections 185 , 3(1) and 181 of the MOTOR VEHICLES ACT .

2. The crime is registered on the allegation that the petitioner was found driving his scooter at about 08:30 PM on 30.12.2024 on the Medical College- Kumarapuram road in a rash and negligent manner. The vehicle was intercepted by the Police party and on suspicion that the petitioner had consumed alcohol, he was arrested and later released on self bond, after conducting a breathalyzer test.

3. Learned counsel for the petitioner contended that, going by Section 203 of the MOTOR VEHICLES ACT , the breathalyzer test ought to have been conducted immediately after intercepting the vehicle, whereas in the petitioner's case the test was conducted much after his arrest. The next contention is that, as per Section 204 of the MOTOR VEHICLES ACT , the petitioner should have been subjected to medical test within two hours of his arrest. Yet another contention is that the print out of the breath analyzer test produced along with the final report shows the reading in the blank test conducted, immediately before the petitioner's breath sample was taken, as 412 mg/100 ml. It is submitted that the police was bound to ensure that the calibration of the device showed ‘zero’ before conducting the breathalyzer test. In this regard, reliance is placed on the Circular issued by the Director General of Civil Aviation, making it mandatory to conduct breath-analyzer test for personnel engaged in aircraft maintenance, air traffic control services, aerodrome operations and ground handling services.

4. It is argued that the offence under Section 181 of the MOTOR VEHICLES ACT is not attracted, since the petitioner was holding a valid licence at the relevant point of time, evidenced by Annexure A2.

5. Finally, it is contended that, since the offence under Section 281 of BNS is founded on the assumption that the petitioner was riding the scooter in a dangerous manner under the influence of alcohol, in the absence of proof regarding consumption of alcohol, petitioner cannot be prosecuted for that offence also.

6. Learned Public Prosecutor submitted that the Mahazar produced along with the final report clearly shows that the petitioner was riding the scooter in a dangerous manner, endangering human life. Hence, the challenge against the prosecution under Section 281 of BNS cannot be sustained.

7. Admittedly, the breathalyzer test was conducted some time after the petitioner’s arrest. Going by the proviso to Section 203 (1) of the MOTOR VEHICLES ACT , breath test ought to be conducted as soon as reasonably practicable after commission of the offence. As per Section 204 , if the person suspected of having consumed alcohol is arrested under Section 203 , he shall be required to provide a specimen of his blood for laboratory test.

8. The contention that the breath analyzer test should have been conducted only after ensuring that the calibration of the instrument is at ‘zero’ is well founded for the following reasons:

A breathalyzer is a diagnostic device that measures the content of alcohol in the air a person breathes out. In the petitioner's case, the print out of the test shows the alcohol content as 41 mg/100 ml, which is above the permitted level of 30 mg/100 ml. At the same time, the reading of the Air Blank Test is 412 mg/100 ml. As such, no sanctity can be attached to the test conducted. Here, it is essential to note that the purpose of conducting an Air Blank Test is to check for any residual alcohol before taking breath sample from a person using a b