Himachal Pradesh High Court
State Of Himachal Pradesh vs Pearl Beverages Limited" on 30 December, 2022
Bench: Tarlok Singh Chauhan
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REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
CRIMINAL APPEAL NO.
254 OF 2010
Between:
STATE OF HIMACHAL PRADESH
...APPELLANT
(BY MR. ASHOK SHARMA,
ADVOCATE GENERAL, MR.
RAJINDER DOGRA, SENIOR
ADDITIONAL ADVOCATE GENERAL,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERAL AND MR.
RAJAT CHAUHAN, LAW OFFICER)
AND
JIA LAL, SON OF SHRI RAM
LAL, RESIDENT OF GASOH,
P.O. JHAKRI, TEHSIL
RAMPUR BUSHEHAR,
DISTRICT SHIMLA, H.P.
...RESPONDENT
(BY MR. P.P. CHAUHAN, ADVOCATE)
::: Downloaded on - 30/12/2022 20:33:50 :::CIS
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This appeal coming on for order this day, this Court
passed the following:
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JUDGMENT
Aggrieved by the judgment dated 16.2.2010, passed by
learned Sub Divisional Judicial Magistrate, Rampur, District Shimla in
case No. 195-2 of 2007, whereby the accused/respondent stood
acquitted, the appellant-State has filed the instant appeal.
2. As per the prosecution case, on 16.7.2007, the
respondent/accused was found to be driving vehicle bearing
registration No. HP-01A-3573 in a rash and negligent manner. He lost
control over the vehicle as a result of which the vehicle rolled down
approximately 15 feet, resulting in simple injuries on the person of the
respondent. The matter was reported to the Police and on the basis of
investigation carried out, it was opined that the respondent/accused
was driving the vehicle in a rash and negligent manner, that too
without having a valid and effective driving license. Accordingly,
notice of accusation under Sections 279 and 337 IPC and Sections 181
and 185 of the Motor Vehicles Act was put to the accused, to which he
pleaded not guilty and claimed trial.
3. The prosecution examined six witnesses. Thereafter
statement of respondent/accused under Section 313 Cr. P.C. was
recorded. After evaluating the evidence, learned trial Magistrate
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acquitted the respondent/accused constraining the appellant-State to
file the instant appeal.
4. It is vehemently argued by Mr. Vinod Thakur, learned
Additional Advocate General that findings recorded by the learned
Trial Court are perverse inasmuch as it has failed to take into
consideration the statements of the prosecution witnesses in the right
perspective. Therefore, on this sole ground the judgment deserves to be
set aside. In addition, it is averred that there was ample amount of
evidence to substantiate and prove the fact that the respondent/accused,
at the relevant time, was under the influence of alcohol.
5. I have heard learned counsel for the parties and gone
through the records of the case.
6. At the outset, it needs to be observed that a person can be
said to be under the influence of alcohol, if his faculties are so
disturbed that his driving ability is impaired. To be under influence of
alcohol must be understood as a question going to the facts and a
matter to be decided with reference to the impact of consumption of
alcohol on the particular driver. If in a case, without there being any
blood test, circumstances associated with effects of consumption of
alcohol are proved, it may certainly go to show that the person who
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drove the vehicle had come under the influence of alcohol. The manner
in which the vehicle was driven, may again, if it unerringly points to
the person having been under the influence of alcohol, be reckoned.
Evidence, if forthcoming, of an unsteady gait, smell of alcohol, either
before the commencement of the driving or even during the process of
driving, along with the manner in which the accident took place, may
point to the driver being under the influence of alcohol. It would be a
finding based on the effect of the pleadings and the evidence. It is so
held by the learned three-judge Bench of the Hon'ble Supreme Court
in its recent judgment, titled as, "Iffco Tokio General Insurance
Company Limited versus Pearl Beverages Limited", reported in
(2021) 7 Supreme Court Cases 704.
7. Earlier to this, the learned three-judge Bench of the
Hon'ble Supreme Court in "Bachubhai Hassanalli Karyani versus
State of Maharashtra, reported in 1971(3) Supreme Court Cases 930
had held that drunkenness cannot be said to be conclusively proved
unless urine or blood test are carried out. Mere smell of alcohol,
unsteady gait, dilation of pupils and incoherence in speech is not
enough.
8. Bearing in mind the afore exposition of law, it would be
.
noticed that the prosecution had examined two passengers, PW-2
Kimat Singh and PW-3 Surender to prove that the respondent/accused
was under the influence of alcohol at the relevant time. These
witnesses have stated that on the date of accident they were in the
vehicle being driven by the accused. They further stated that the
accused had consumed alcohol. However, both these witnesses have
stated that they were taken safely by the respondent/accused.
Therefore, their testimony is of no avail, muchless of no assistance or
help for the prosecution.
9. On the other hand, the respondent/accused was examined
by the Medical Officer, who opined that the respondent had consumed
alcohol, but was not under the influence of alcohol. That apart,
Medical Officer Shri Bimal Negi and the Investigating Officer, Shashi
Bhushan did not make any reference to obtain the blood or urine
samples of the accused, so as to ascertain as to whether the accused
was actually under the influence of alcohol or not. In the absence of
such tests, learned Trial Magistrate committed no error by concluding
that there was no material available on record to establish that the
respondent was in fact under the influence of alcohol at the relevant
time and that his faculties were so disturbed that his driving ability was
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impaired, as noticed above.
10. Apart from the accused having been charged for the
offences punishable under Sections 279 and 337 of IPC, he had also
been charged for the offences punishable under Sections 181 and 185
of the Motor Vehicles Act. Section 185 of the Motor Vehicles Act
creates a criminal offence. It purports to deal with driving by a drunken
person or by a person under the influence of drugs. Being a criminal
offence, the ingredients of the offence must be proved beyond
reasonable doubt and evidence must clearly indicate the level of
alcohol in excess of 30 mg in 100 ml blood and what is more such
presence must be borne out by a test by breath analyser or any other
test, including laboratory test. Even in the absence of these tests, the
prosecution could have proved the case otherwise by leading cogent
and convincing evidence. Once the prosecution has failed to prove that
the respondent/accused was driving the vehicle under the influence of
liquor, obviously then none of the offences, to which the
respondent/accused stood charged, is made out.
11. Since the prosecution has failed to show that at the time
of driving the vehicle in question, resulting in accident, the
respondent/accused was under the influence of alcohol, therefore no
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infirmity can be found in the judgment of acquittal recorded by the
learned trial Magistrate.
12. Consequently, there is no merit in the appeal and the
same is dismissed. Pending application(s), if any, are also disposed of.
r to (Tarlok Singh Chauhan)
Judge
December 30, 2021
Kalpana
