A breathalyser test is mandatory to substantiate claims of driving under intoxication; failure to do so invalidates related prosecutions.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 11^TH DAY OF FEBRUARY 2026 / 22ND MAGHA, 1947 CRL.MC NO. 5964 OF 2023 CRIME NO.96/2023 OF Harippad Police Station, Alappuzha AGAINST THE ORDER/JUDGMENT DATED IN ST NO.201 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, HARIPAD PETITIONER/ACCUSED:

MUKESH V., AGED 35 YEARS S/O VISWANATHAN, THIRUVONAM, THONDANKULANGARA WARD, SOUTH ARYAD MURI, KOMALAPURAM VILLAGE, AVALOOKKUNNU P.O, ALAPPUZHA DISTRICT, PIN - 688006 BY ADV SRI.G.PRIYADARSAN THAMPI RESPONDENT/COMPLAINANT:

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR OTHER PRESENT:

SR.PP.SMT.SEETHA STHIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.02.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O R D E R Dated this the 11^th day of February, 2026 The petitioner is the accused in S.T. No.201/2023 on the file of the Court of the Judicial First Class Magistrate-II, Haripad (Trial Court), which has originated from Crime No.96/2023 registered by the Haripad Police Station, alleging the commission of the offences punishable under Section 279 of the Indian Penal Code and Section 185 of the Motor Vehicles Act , 1988 ( for short, M.V.Act).

2. The crux of the prosecution allegation is that:-

On 02.02.2023, at about 19.30 hours, the accused was found driving a car bearing registration No.KL 04-AP- 1868 in a rash and negligent manner, under the intoxication of alcohol through the NH 66 road from south to north. When the vehicle reached Karuvatta TB junction, it hit against another car coming from the opposite direction. Thus, the accused has committed the above offences.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The learned counsel for the petitioner submits that, as long as the Investigating Officer has not conducted a breathalyser test and taken a contemporaneous printout as mandated under Section 203 of the Act and Circular 44 of 2009 issued by the Director General of Police, the offence is not attracted. The case against the petitioner has been registered solely on the basis of Annexure 3 certificate of drunkenness. Since, the breathalyser test was not conducted, it cannot be assumed that the petitioner was under the influence of alcohol. Hence, the offence under Section 185 of the M.V.Act is not attracted and consequently, the offence under Section 279 of the IPC also cannot be said to be attracted. The learned counsel relied on the decision of this Court in Dhanesh M.v. State of Kerala [ 2025(3) KHC 292 ] and Saran Kumar S. v. State of Kerala [ 2025(5) KHC 98 ] to buttress his contentions. He prays that the entire proceedings may be quashed.

5. The learned Public Prosecutor opposes the Crl.M.C. She submits that the contentions raised in the Crl.M.C are matters to be considered at the time of trial. Moreover, since the offence under Section 279 of the IPC is attracted, even if the petitioner is not subjected to breathalyser test, the prosecution against him would lie.

Therefore, the Crl.M.C may be dismissed.

6. In Dhanesh’s case (Supra), this Court has categorically held that, it is mandatory to subject a person to medical test by a registered medical practitioner within two hours of his arrest as per Section 185 of the M.V.Act.

However, to arrest a person accused of driving or attempting to drive a motor vehicle in a public place, under the influence of alcohol, he should be first subjected to provide one or more specimens of his breath for the breath test, if the police officer suspects him t