This petition is filed under Section 482 Cr.P.C for quashing

the proceedings initiated against the petitioner for committing an

offence punishable under Section 185 of the Motor Vehicles Act,

1988 (hereinafter referred to as 'the Act').

2.

The petitioner is the accused in the case

C.C.No.220/2018 on the file of the Court of the Judicial First

Class Magistrate-VI, Kozhikode. The prosecution case is that, he

drove the car KL 11 BF 2991 in a manner so rash and negligent

as to endanger human life and as a result, the car hit on an

autorickshaw causing grievous hurt to the driver of it. It is

alleged that the petitioner was under the influence of alcohol at

the time when he drove the car and that he committed the

offences punishable under Sections 279 and 338 I.P.C and under

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Section 185 of the Act.

3.

The contention of the petitioner is that, in the absence

of any breath analyser test conducted to detect the quantity of

alcohol in the blood, the prosecution against him for an offence

punishable under Section 185 of the Act is not maintainable.

4.

Heard learned counsel for the petitioner and the

learned Public Prosecutor.

5. Section 185 (a) of the Act, as it stood before the

amendment effected by Act 32 of 2019, provided that whoever,

while driving, or attempting to drive, a motor vehicle, has, in his

blood, alcohol exceeding 30 mg per 100 ml of blood detected in a

test by a breath analyser shall be punished.

6. The essential requirements to attract an offence under

Section 185(a) of the Act are the following: (1) Driving or

attempting to drive a motor vehicle (2) Presence of alcohol,

exceeding 30 mg per 100 ml of blood, in the blood of the driver

(3) Detection of such quantity of alcohol in the blood of the driver

by conducting test by a breath analyser.

7. Thus, even if a person has driven or made attempt to

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drive a motor vehicle after consuming alcohol, he cannot be

prosecuted or punished for committing an offence under Section

185(a) of the Act, unless the quantity of alcohol in his blood, as

tested by a breath analyser, exceeded 30 mg per 100 ml of

blood. Detection of alcohol, exceeding the quantity of 30 mg per

100 ml of blood, by conducting breath analyser test, is an

essential requirement of an offence under Section 185(a) of the

Act. Detection of alcohol, exceeding the quantity of 30 mg per

100 ml of blood, by conducting medical examination or

laboratory examination or any test other than breath analyser

test, is not sufficient.

8. This Court has taken a similar view in Sagimon @

Prakash v. State of Kerala (2014 (3) KHC 586 : 2014 (3)

KLT 782).

9. Section 185 of the Act has been amended by Act 32 of

2019. After the amendment, if alcohol in the blood of the driver,

above the quantity of 30 mg per 100 ml of blood, is detected by

any other test including a laboratory test, it is sufficient to attract

an offence under that provision.

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10.

The case on hand relates to the period before the

amendment. Alcohol in the blood of the petitioner was not

detected by conducting any breath analyser test. Therefore, the

prosecution of the petitioner for committing an offence

punishable under Section 185(a) of the Act is not maintainable

and it is liable to be quashed.

11.

However, it is to be noticed that the petitioner was

subjected to medical examination and a drunkenness certificate

has been obtained. Quashing the proceedings against the

petitioner in respect of the offence under Section 185 of the Act

does not mean that the prosecution cannot prove that he was

drunk or under the influence of alcohol at the time of driving the

vehicle. The certificate of drunkenness obtained by conducting

medical examination of the petitioner may be used for proving

that he was drunk or under the influence of alcohol at the time

when he drove the car. Breath analyser test is required to be

carried out only when the person is driving or attempting to drive

the vehicle. The expressi