Sri Rudra vs State of Karnataka

Manjula Chellur, J.—Heard the learned Counsel for the revision Petitioner and so also learned Government Pleader.

A case came to be registered for an offence punishable under Sections 279 and 185 of Motor Vehicles Act alleging that on 24.5.1999 at 6.45 p.m., the accused while driving KSRTC Bus No. KA-31 F 306, drove the same in a rash and negligent manner so as to endanger the human life and safety of others and while doing so he was under the influence of intoxication. After completing the investigation in Cr. No. 53 of 1999, charge sheet was filed and the Petitioner-accused was tried for the above mentioned offences.

In all 9 witnesses were examined and 7 documents were marked for the prosecution.

PWs.1 to 3 the so-called eyewitness including the conductor of the bus were treated hostile. The other witnesses are mahazar witnesses and official witnesses. PW-6 is the complainant.

According to the prosecution, the complainant was attached to Rural Police Station at Shirwa and on that day he was travelling in the said bus from Karwar to Kaiga. On account of driving the bus in a zig-zag manner, the complainant asked him to stop the bus and there was also some problem with issuing of tickets. The complainant suspected him under the influence of alcohol and took him before the concerned police lodging a complaint along with passengers who are cited as witness and some of them are examined.

The learned trial Judge on appreciating the material produced before the Court so far as rash and negligent driving endanger the human life, he accepted the evidence of the eyewitnesses and has come to conclusion that there was no such rash and negligent driving only with regard to Section 185 of I.M.V. Act. On account of the evidence of the doctor-PW.7 who took the blood sample of the Petitioner and Ex.P6 the report from FSL regarding the alcohol content in his blood, he was convicted for the offence u/s 185 of IPC and sentenced him to undergo Simple Imprisonment for 3 months and fine of Rs. 2,000/- and in default to undergo Simple Imprisonment for one month.

Aggrieved by the same he filed appeal before the Sessions Court wherein the order of the trial Court was confirmed more or less on the same reasoning. Aggrieved by the said confirmation the present petition is filed wherein the learned Counsel for the Petitioner has raised the following three legal aspects:

i) That the complainant-PW.6 was not a person in the uniform as required u/s 203 of the I.M.V. Act.

ii) The second contention is he must have been authorized to subject the driver of the bus for specimen of one or more breath test.

iii) The last contention is for proceeding with the procedure u/s 204 subjecting him for blood test, he must have been arrested by the said police officer.

Section 203(1) and Proviso reads as under:

Section 203(1): A police officer in uniform or an officer of the Motor Vehicles Department, as may be authorized in this behalf by that Department, may require any person driving or attempting to drive a motor vehicle in a public place to provide one or more specimens of breath for breath test there or nearby, if such police officer or officer has many reasonable cause to suspect him of having committed an offence u/s 185: Provided that requirement for breath test shall be made (unless it is made) as soon as reasonably practicable after the commission of such offence.

Section 204 of the Act reads as under:

Section 204: (1) A person, who has been arrested u/s 203 may, while at a police station, be required by a police officer to provide to such registered medical practitioner as may be produced by such police officer, a specimen of his blood for a laboratory test if,

(a) it appears to the police officer that the device, by means of which breath test was taken in relation to such person, indicates the presence of alcohol in the blood of such person, or

(b) such person, when given the opportunity to submit to a breath test, has refused, omitted or failed to do so:

Provided that where the person required to provide such specimen is a female and the registered medical practitioner produced by such police officer is a male medical practitioner, the specimen shall be taken only in the presence of a female, whether a medical practitioner or not.

(2) A person while at a hospital as an indoor patient may be required by a police officer to provide at the hospital a specimen of his blood for a laboratory test:

(a) if it appears to the police officer that the device by means of which test is carried out in relation to the breath of such person indicates the presence of alcohol in the blood of such person, or

(b) if the person having been required, whether at the hospital or elsewhere, to provide a specimen of breath for a breath test, has refused, omitted or failed to do so and a police officer has reasonable cause to suspect him of having alcohol in his blood:

Provided that a person shall not be required to provide a specimen of his blood for a laboratory test under this Sub-section if the registered medical practitioner in immediate charge of his case is not first notified of the proposal to make the requirement or objects to the provision of such specimen on the ground that its provision or the requirement to provide it would be prejudicial to the proper care or treatment of the patient.

(3) The results of a laboratory test made in pursuance of this Section shall be admissible in evidence.

After reading the above sections having regard to the legal question raised by the learned Counsel for the Petitioner though it is noticed Clause 61 of Bill No. 53/94 was proposed to seek amendment of Section 203 so as to empower all the officers of the Motor Vehicles Department in addition to Police Officers in uniform to take breath test of the drivers, we do not know what happened to the bill. But however, there was no such proposal to include Police Officer without uniform as well.

The evidence on record would go to show even as admitted by P.W.6-complainant, he was on duty and he was not in uniform and the prosecution did not produce anything to show that he was on official duty in mufti at that time. There is nothing on record to show that he was authorized person to stop the driver for breath test at that point of time.

Apparently, no breath test with the required apparatus was being done at that point of time. In order to proceed with the case or in order to come to conclusion that he deserves to be punished u/s 185, one has to see the procedure at Section 204 of the Motor Vehicles Act. Section 204 says a person who has been arrested u/s 203 may be required by a Police Officer to be produced before the medical practitioner to give a specimen of his blood for testing.

By reading Sections 203 and 204 of Motor Vehicles Act it would make it explicit that only if positive evidence of alcohol is found by conducting a breath test u/s 203, then such person could be subjected for blood test u/s 204. The intention of the legislation behind these two provisions must be to keep a check on unnecessary or intentional harassment and embarrassment being caused to the public at the instance of such authorized person. Therefore, it has been made mandate to subject such driver for a breath test first and if it is positive then subject him to blood test for the purpose of detecting alcohol content in him.

Apparently, there is violation of mandatory procedure by the complainant. The above observations becomes much more prominent in view of the defence taken up by the Petitioner that over the issue of issuing tickets quarrel ensued at the instance of some passengers, the bus was take to the Police Station where P.W.6 was working. None of the passengers have supported the case of the prosecution that there was any defect or dangerous manner with regard to the driving of the Petitioner. None of them have suspected the influence of alcohol so far as the driver is concerned at the relevant point of time.

Under these circumstances, the entire proceedings get vitiated for non-compliance of mandatory provisions. Therefore, the judgment and order of conviction in CC. No. 179 of 1999, which was confirmed in Criminal Appeal No. 11 of 2000 are set-aside.

Accordingly, this Criminal Petition is allowed acquitting the Petitioner-accused for the charge framed u/s 185 of Motor Vehicles Act. The bail bond and surety bonds are cancelled.