Alcohol content testing is essential for Section 185 charges; Section 279 is independent and requires separate consideration.

ORDER

The petitioner is the accused in Crime No. 392/2022 of Erattupetta Police Station, which is now pending as S.T No. 1494/2022 before the Judicial First Class Magistrate Court, Erattupetta. The offences alleged against the petitioner are under Section 279 of the Indian Penal Code and also under Section 185 of the Motor Vehicles Act .

2. The allegation against the petitioner is that on 25.03.2022 at 7.30.p.m., the petitioner drove a car bearing registration No.KL-35- D-0982 rashly through the Erattupetta-Thodupuzha road under the influence of alcohol. Annexure I is the final report submitted by the Police. This Crl.M.C is filed for quashing all further proceedings pursuant thereto.

3. Heard Kumari. Niharika Hema Raj, learned counsel appearing for the petitioner and Sri.M.P Prashanth, learned Public Prosecutor for the State.

4. The contention put forward by the learned counsel for the petitioner is that the offence under Section 185 of the Motor Vehicles Act would not get attracted from the materials produced along with the Annexure I final report. It is pointed out that of the MV Act mandates a particular level of alcohol in the blood of the accused and the same has to be determined based on a Breath Analyzer test or a lab test. It is pointed out that none of the aforesaid tests were conducted. Without such a test, the offence would not be attracted against the petitioner. As regards the offence under Section 279 of IPC , it is contended by the learned counsel for the petitioner that the aforesaid offence was incorporated merely because of the reason that he was allegedly found to have driven the vehicle under the influence of alcohol. Since there are no materials attracting the commission of an offence under of the M.V Act, the offence under Section

279 of the IPC also has to be quashed, contends the learned counsel.

5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. The learned Public Prosecutor brought my attention to the Certificate of Examination and Report of Drunkenness, wherein it is mentioned that the petitioner was not willing to undergo a blood examination test and, therefore, the test could not be conducted. It is pointed out that since the lab test could not be undertaken for want of cooperation on the part of the petitioner, he is not entitled to raise the aforesaid contentions. On this ground, the learned Public Prosecutor seeks the dismissal of this Crl.M.C.

6. After hearing both sides and perusing the records, I find some force in the contention put forward by the learned counsel for the petitioner. The requirement to determine the alcohol content in the blood is mandatory to attract the offence under Section 185 of the M.V Act. The aforesaid provision further stipulates the manner in which the detection of the alcohol content should be made, which is either by way of a Breath Analyser test or a Lab Test. Admittedly both the aforesaid tests were not conducted by the Investigation Officer. It is true that, in the certificate of examination of drunkenness, it is mentioned that the petitioner was not willing to undergo the lab test. In my view, that cannot be treated as a reason to assume that an offence under has been committed. Since the detection of alcohol content above the specified limits through the methods of breath analyzer test or lab test are made mandatory for the initiating prosecution for the offence under of M.V Act, unless those procedures are strictly complied with, no prosecution can be sustained. In such circumstances, I am of the view that the reasons cited by the learned Public Prosecutor cannot be taken as a valid ground for not interfering with the prosecution now launched against the petitioner. Therefore I find that the materials produced along with Annexure I are not sufficient to make out the offence under of the M.V Act.

7. Next aspect relates to the offence under Section 279 of the Indian Penal Code . The learned counsel for