Procedural non-compliance with the Motor Vehicles Act invalidates prosecution under Section 185, but does not affect independent charges under Section 279 IPC.

ORDER

The petitioner is the accused in S.T.No.296/2019 on the files of the Judicial First Class Magistrate Court, Nedumkandam. 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.

2. The prosecution case is that on 13.04.2019, at about 8:50 p.m, the accused/petitioner was found to have been driving an auto rickshaw under the influence of alcohol, in a rash and negligent manner, likely to endanger human life, through Vattappara-Udumbanchola public road. The Inspector of Police, Udumbanchola, 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 165 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 Inspector of Police, Udumbanchola, filed a final report before the learned Magistrate alleging the commission of offence under Section 279 IPC and Section 185 of the MV Act .

3. In the present petition, the petitioner would contend that the prosecution initiated against him is bad in the eye of law due to 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.

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

5. The crime involved in this case is alleged to have been committed on 13.04.2019, 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 test immediately after his apprehension, and it was found that his blood contained alcohol content at the rate of 165 mg per 100 ml. Therefore, the procedural requirement of (a) as it existed at the time of commission of the crime, has been fulfilled in the present case. Had it been a case where the Investigating Officer proceeded with the matter in the same manner as he does while dealing with any other non-cognizable offence, and did not venture to arrest the petitioner, then the above breath-analyzer test result alone was sufficient to establish the offence under of the M.V.Act. Blood test of the offender is not a mandatory requirement if there is no arrest pursuant to him being booked for the offence under of the M.V.Act after a breath-analyzer test. But the position is different if there is arrest of the accused after subjecting him to breath-analyzer test. It is pertinent to note that, in the present case, the Investigating Officer had resorted to the arrest of the petitioner in exercise of his powers under Section 202 of the MV Act . That being so, it is incumbent upon the Investigating Officer to comply with the procedural mandate of the proviso to the aforesaid Section. As per the proviso to Section 202 of the MV Act , any person arrested by the police officer in uniform in exercise of the powers under the said Section, shall subject the arrestee to medical examination as provided under Sections 203 and 204, by a registered Medical Practitioner within two hours from the time of arrest. The proviso further mandates the relea