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2021 Supreme(Online)(KER) 17339
HIGH COURT OF KERALA
Ziyad Rahman A. A, J
CHERIAN SAMUEL – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 7786/2019
Prosecution under Section 185 of the MV Act necessitates a Breath Analyzer test; absence of such test invalidates the charge.
Headnote:
Driving - Rash and Negligent Driving - IPC Section 279, MV Act Section 185 - The court emphasized the necessity of a Breath Analyzer test for prosecution under Section 185 of the MV Act, quashing charges under this section while allowing proceedings under Section 279 IPC for rash driving.
Fact of the Case:
The petitioner was accused of driving under the influence of alcohol and rashly, leading to charges under IPC Section 279 and MV Act Section 185. The petitioner argued that the mandatory Breath Analyzer test was not conducted, making the MV Act charge unsustainable.
Finding of the Court:
The court found that without a Breath Analyzer test, the prosecution under Section 185 of the MV Act could not proceed. However, it upheld the charge under Section 279 IPC, as rash driving could occur regardless of intoxication.
Issues: Whether the absence of a Breath Analyzer test invalidates the prosecution under Section 185 of the MV Act, and whether the charge under Section 279 IPC can stand independently.
Ratio Decidendi: The court held that prosecution under Section 185 of the MV Act requires a Breath Analyzer test to establish alcohol levels, which was not conducted. The charge under Section 279 IPC remains valid as it does not depend on intoxication.
Final Decision: Charges under Section 185 of the MV Act quashed; proceedings under Section 279 IPC allowed to continue.
ORDER
The petitioner is the accused in Crime No.326 of 2018 of Kumaly Police Station. The offences alleged against the petitioner are punishable under Sections 279 of the Indian Penal Code ( IPC ) and Section 185 of the Motor Vehicles Act (M.V.Act).
2. The allegation against the petitioner is that on 30.5.2018 at about 19.30 hours the petitioner drove a Wagon R. Car bearing registration No.KL-37C-9599 in a rash and negligent manner endangering human life from Kumily to Kottayam under the influence of alcohol. The vehicle was intercepted by the 2nd respondent at Thekkady kavala and the petitioner was taken into custody and subjected to medical examination after registering Annexure-1 F.I.R. After completing the investigation, Annexure-2 final report was filed for the offences mentioned above.
3. The case of the petitioner is that, the petitioner was not subjected to test by a Breath Analyzer which is mandatory for the offence under Section 185 of the M.V. Act. In such circumstances, the offence under of the M.V. Act is not attracted. As regards to Section 279 IPC is concerned, it was pointed out that, the same was incorporated only because of the allegation that the petitioner was under the influence of alcohol. In such circumstances, he seeks the invocation of powers of this Court under Section 482 of Cr.PC to quash the entire proceedings alleged against him.
4. Heard Sri.Biju C. Abraham, the learned counsel for the petitioner and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for respondents.
5. In Sagimon alias Prakash v. State of Kerala [ 2014(3) KHC 586 ], the question as to the requirements for attracting the offence under Section 185 of the M.V.Act was considered by this Court and in paragraph 7 of the same, it was observed as follows:
“7. Now the question is whether prosecution under S.185 of MV Act is possible on the basis of the report of medical examination and chemical examination, or whether such a prosecution is not possible without analysis of blood by breath test. The answer is contained in S.202 MV Act itself. The situation of arrest under S.202 MV Act is different from the other situations of arrest. When sub-sections (3) and (4) of S.203, and sub-S.2 of S.202 authorises arrest on detection of alcohol content in blood, or on failure to give name and address, or to provide breath sample, arrest under S.202 of MV Act can be made only in a case where the accused committed the offence in the presence of a Police Officer. Sub-S.3 to S.203 or Clause (a) to sub-section (1) of S.204 does not provide that arrest is possible only if the alcohol content exceeding 30 mg. Per 100ml blood is detected. But that cannot be the situation under S.202 MV Act, because commission of offence must be there for arrest under S.202. An offence punishable under S.185 of MV Act can be said to have been committed only if alcohol content exceeding 30 mg per 100 ml of blood is detected by a breath analyser. Commission of offence meant under S.202 of MV Act is not the act of consumption of alcohol whilst driving vehicle. What is made punishable under S.185 of MV Act is driving a vehicle or attempting to drive a vehicle with alcohol in blood exceeding 30 mg per 100 ml, detected by a breath analyser. This means that only when alcohol content exceeding 30 mg per 100 ml of blood is detected by a breath analyser, a person can be prosecuted under S.185 of MV Act, because having alcohol content exceeding the permitted limit becomes punishable as an offence only if such quantity of alcohol is detected by breath analyser. This is the offence punishable under S.185 of MV Act, and only when such an offence is committed or only when alcohol content above limit is detected by breath analysEr, a person can be arrested without warrant under S.202 of MV Act. In this case breath analyser test was admittedly not conducted by the police, and the prosecution is based simply on the certificate of the medical practitioner and the report of laborator
