Procedural non-compliance in drunken driving cases invalidates prosecution under Section 185 MV Act, but does not affect independent charges under Section 279 IPC.

ORDER :

(G. GIRISH, J.)

“Drunken driving has become a menace to our society. Every day drunken driving results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist, rain, etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision.”

[ State v. Sanjeev Nanda , (2012) 8 SCC 450 ]

2. The above observation of the Apex Court, though faded in the memory lanes of the past, often crops up as a reminder, or rather an eye-opener, whenever a mishap caused due to drunken driving comes up for consideration before a court of law in India. But unfortunately, the law enforcing agencies, in many cases of drunken-driving, are not diligent enough to stick on to the procedural requirements for a successful prosecution. Here is a case where such a lapse on the part of the investigating agency has its cost on the escape scot-free of an offender, who is alleged to have driven a motor car with alcohol content amounting to 121 mg per 100 ml in his blood.

3. The petitioner is the accused in S.T.No.841/2019 on the files of the Judicial First Class Magistrate Court, Mavelikkara. The offences alleged against him are under Section 279 of the Indian Penal Code, 1860 (in short, ‘ IPC ') and Section 185 of the Motor Vehicles Act, 1988 (in short, ‘ MV Act ’). He seeks to quash the proceedings in the said case on the grounds of procedural irregularities on the part of the investigating agency.

4. The prosecution case is that on 28.04.2019, at about 7:30 p.m, the accused/petitioner was found to have been driving a motor car under the influence of alcohol, in a rash and negligent manner, likely to endanger human life, through Mavelikkara-Kuttitheruvu public road. The Sub Inspector of Police, Mavelikkara, and his team are said to have intercepted the vehicle and subjected the petitioner to alcometer test, in which it was found that the alcohol content in his blood was 121 mg per 100 ml. The petitioner/accused was arrested on the spot and taken into custody. However, he was not subjected to the laboratory test as required under Section 204 of the MV Act . Instead, it appears that the petitioner was released on bail. Later on, the Sub Inspector of Police, Mavelikkara, filed a final report before the learned Magistrate alleging the commission of offence under Section 279 IPC and Section 185 of the MV Act .

5. In the present petition, the petitioner would contend that the prosecution initiated against him is bad in the eye of law due to the procedural non-compliance of the mandatory requirements of the statute. It is also stated that the offence under Section 279 IPC has no independent existence in the facts and circumstances of the case, when it is found that Section 185 of the MV Act cannot be invoked due to procedural infraction.

6. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

7. The crime involved in this case is alleged to have been committed on 28.04.2019, that is, before the amendment made to Section 185 of the Motor Vehicles Act vide Act 32 of 2019, came into force. As the law which stands on 28.04.2019, (a) of the MV Act mandated the detection of alcohol content in the blood of the offender as exceeding 30 mg per 100 ml through a breath analyser test. As far as the present case is concerned, the prosecution records would reveal that the petitioner was subjected to breath analyser