Jyothish vs The State of Kerala

M. Sasidharan Nambiar, J.—Petitioner is the accused in S.T. 2329/2009 on the file of Judicial First Class Magistrate Court, North Paravur taken cognizance for the offence u/s 185 of Motor Vehicles Act on Annexure A4 final report. This petition is filed u/s 482 of Code of Criminal Procedure to quash the final report as well as the cognizance taken contending that no offence as alleged is committed and when a prima facie case is not made out, continuation of the proceedings is an abuse of process of the court.

Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard.

Learned Counsel appearing for the petitioner pointed out that Annexure A1 FIR was registered on the basis of statement of Assistant Sub Inspector of Police to the effect that on 1.3.2009 at about 11 a.m petitioner was found driving Car bearing No. KL-7/AX- 2352 along Paravur- Ernakulam NH road and the Sub Inspector of Police suspected that petitioner has consumed alcohol and therefore arrested him and sent for medical examination and hence the case is registered. It is pointed out that Anenxure A3 medical certificate does not show that petitioner was under the influence of alcohol and instead would only show that he might have consumed alcohol and in any case the medical certificate shows that he was not under the influence of alcohol and therefore the case as against him for the offence u/s 185 of Motor Vehicles Act is not sustainable. It is also pointed out that Annexure A4 final report does not show on what basis it is alleged that the petitioner has committed the offence u/s 185 of Motor Vehicles Act.

Section 185 of Motor Vehicles Act provides punishment for driving by a drunken person or by a person under the influence of drugs. Under Clause (a) 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 breach analyser is punishable for the offence and under Clause (b) he is liable for punishment if he is under the influence of drug to such an extent as to be incapable of exercising proper control of the vehicle.

If petitioner is to be prosecuted for an offence u/s 185(a), there should be a positive case that at the time when he was driving the motor vehicle he had in his blood, alcohol exceeding 30 mg per 100 ml. of blood. Though petitioner was examined by the doctor, the percentage of alcohol, if any in the blood was not examined. There is no material to hold that petitioner was having in his blood alcohol exceeding 30 mg. per 100 ml. Therefore he cannot be prosecuted for the offence u/s 185(a) of Motor Vehicles Act.

If petitioner is to be prosecuted for the offence u/s 185(b) there should be a positive case that on 1.3.2009 while he was driving he was under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle. There is no such case.

Even though Annexure A3 medical certificate shows that petitioner might have consumed alcohol, it establishes that he was not under the influence of alcohol. In such circumstance, continuation of the prosecution for the offence u/s 185 of Motor Vehicles Act is only an abuse of process of the court. When in any case he cannot be convicted after trial for the offence it is not in the interest of justice to continue the prosecution.

Petition is allowed. S.T.2329/2009 on the file of Judicial First Class Magistrate Court, North Paravur is quashed.