Cherian Samuel v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 ## CRL.MC NO. 7786 OF 2019 [TO QUASH FINAL REPORT IN CRIME NO.326/2018 OF KUMALY POLICE STATION, IDUKKI WHICH IS PENDING AS S.T. NO.541 OF 2018 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PEERMADE, IDUKKI] ## PETITIONER/PETITIONER: CHERIAN SAMUEL AGED 45 YEARS S/O.SAMUEL,KALARICKAL HOUSE,NARAKAMPUZHA BHAGOM,KOOTTICKAL KARA,KOKAYAL VILLAGE, KUMALY,IDUKKI,KERALA. BY ADV BIJU .C. ABRAHAM ## RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2 THE SUB INSPECTOR OF POLICE, KUMALY POLICE STATION,IDUKKI DISTRICT-685509. BY SHRI. SUDHEER GOPALAKRISHNAN, PP. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.11.2021, THE COURT ON 25.11.2021 PASSED THE FOLLOWING: CRL.MC No.7786 of 2019 2 ## O R D E R 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 2[nd] 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. CRL.MC No.7786 of 2019 3 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 Section 185 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 CRL.MC No.7786 of 2019 4 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_ CRL.MC No.7786 of 2019 5 _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 laboratory test. The requirement of test by breath analyser cannot be dispensed with, and medical examination or laboratory examination cannot be a substitute for such breath test by breath analyser, because such test is a must to constitute the offence under S.185 of MV Act. When the section provides a particular mode of test to detect alcohol content, such a mode should necessarily be adopted. Such a mode of test can be dispensed with only in a cases where the accused refused to give breath sample. I find that the prosecution in this case is not sustainable because detection of alcohol in blood was not made by breath analyser as provided under S.185 of MV Act_ CRL.MC No.7786 of 2019 6 _itself. On this ground the accused is entitled to get an acquittal.”_ 6. It is evident from the principles laid down by this Court that in order to attract the offence under Section 185 of the M.V.Act, the accused must have been driving his vehicle under the influence of alcohol at the time of commission of such act, and there must be a finding that, in his blood there is presence of alcohol exceeding 30 mg. per 100 ml blood. The method of detection contemplated under the said provision is through a test of Breath Analyzer. In this case, Annexure-2 final report is accompanied by a certificate of drunkenness issued by a medical practitioner. The same does not contain the measurement of the percentage of alcohol in the blood of the petitioner at the relevant time. Further, the said medical certificate also does not indicate the conduct of a test through a Breath Analyzer. Since the procedure contemplated under Section 185 of the M.V.Act is detection of alcohol in the blood as mentioned above through a test by a Breath CRL.MC No.7786 of 2019 7 Analyzer, as held by this Court in the above referred judgment, the conduct of test in such manner cannot be dispensed with under any circumstances. The medical examination or laboratory examination cannot be treated as a substitution for the test by Breath Analyzer. In such circumstances, it is evident that, the offence under Section 185 of the M.V. Act is not attracted as the basic requirement for the same is not in existence in Annexure-1. 7. However, with regard to the allegation of rash and negligence driving under Section 279 IPC, I do not find that the case advanced by the learned counsel for the petitioner is sustainable. This is particularly because, the offence of rash and negligent driving is an independent offence and it need not depend upon the level of intoxication of the accused. Even if it is found that, the accused was not under the influence of alcohol, it is possible to drive the vehicle in a rash and negligent manner. In such circumstances, CRL.MC No.7786 of 2019 8 the question whether the appellant drove the vehicle in a rash and negligent manner is a matter of evidence and I am of the view that, the said question cannot be decided in a proceeding under Section 482 of Cr.PC. In such circumstances, considering the above aspect, the Crl.MC is allowed in part. Annexure-2 final report to the extent of implicating the petitioner for the offence under Section 185 of M.V. Act is quashed. The proceedings can be continued for the offence under Section 279 IPC. Sd/- ## ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.7786 of 2019 9 ## PETITIONER’S APPENDIX: ANNEXURE 1 : CERTIFIED COPY OF THE FIR IN CRIME NO. 326/2018 OF KUMALY POLICE STATION ANNEXURE 2 : CERTIFIED COPY OF THE FINAL FORM/REPORT IN CRIME NO.326/2018 OF KUMALY POLICE STATION. ANNEXURE 3 : TRUE COPY OF THE DRUNKNESS CERTIFICATE ISSUED BY ASSISTANT SURGEON, PHC, KUMALY