Kerala High Court
Manoj Kumar K vs State Of Kerala on 8 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
Crl.MC.No.4820 OF 2020(B)
AGAINST THE ORDER/JUDGMENT IN CC 630/2020 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I, KANNUR
CRIME NO.30/2020 OF Kannapuram Police Station , Kannur
PETITIONER/S:
MANOJ KUMAR K.
AGED 51 YEARS
S/O.RAMAN M, KODAKKRAN HOUSE, KADANNAPPALLY AMSOM AND
DESOM, KANNUR DISTRICT
BY ADVS.
SRI.I.V.PRAMOD
SRI.K.V.SASIDHARAN
SMT.SAIRA SOURAJ P.
RESPONDENT/S:
STATE OF KERALA,
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM. KOCHI-682031
OTHER PRESENT:
SR.PP.AMJAD ALI
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
24.11.2020, THE COURT ON 08.01.2021 PASSED THE FOLLOWING:
Crl.MC.4820/2020 2
V.G.ARUN, J.
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CRL.M.C.No. 4820 of 2020
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Dated this the 8th day of January, 2021
ORDER
Petitioner is the accused in C.C.No.630 of 2020 on the files of the
Judicial First Class Magistrate-I, Kannur. Based on the final report filed
in Crime No.30 of 2020 of Kannapuram Police Station, the court took
cognizance for the offences under Sections 279 and 337 of IPC and
185 of the Motor Vehicles Act. The prosecution allegation is that, at
about 4 p.m. On 21.1.2020, the petitioner had driven his car in a rash
and negligent manner so as to endanger human life and had dashed
against another car, resulting in the driver and passenger of the other
car sustaining injuries. The petitioner was arrested and subjected to
medical examination, upon which the doctor opined that the petitioner
smelled of alcohol.
2. The challenge in this Crl.M.C is primarily against inclusion of
the offence under Section 185 of the M.V.Act. The challenge is based
on the ground that the offence under Section 185 would be attracted
only when alcohol content is detected through breath analyser test. It
is contended that no such test havig been conducted, the entire
prosecution is illegal. Reliance is placed on the decision of this Court in
Sagimon v. State of Kerala [2014(3) KLT 782] and Annexure A3
order in Crl.M.C.No.5562 of 2019.
3. A perusal of the memo of evidence appended to the final
report shows that the doctor's certificate is with regard to the injuries
sustained by the petitioner and others as a result of the accident. No
mention is made about breath analyser test or any other test
conducted for the purpose of finding the alcohol content in the
petitioner's blood. As per Section 185, whoever, while driving or
attempting to drive a motor vehicle (a) has in his blood alcohol
exceeding 30 mg per 100 ml of blood detected in a test by a breath
analyser or in any other test including a laboratory test, is liable for
punishment. Therefore, in order to attact the offence under Section
185(a), the accused should have been subjected to a breath analyser
or any other test including a laboratory test and his blood found to
contain alcohol exceeding 30 mg per 100 ml. The mandatory
requirement of conducting a breath analyser test was elaborately dealt
with by this Court in Sagimon's case (supra). The ingredients of
Section 185(a) was considered in Annexure 3 judgment also. Both
decisions were rendered on interpretation of Section 185(a) prior to its
amendment, which mandated detection of blood alcohol level through
a breath analyser test. After the amendment, other tests, including
laboratory test, can be resorted for determining alcohol content in
blood. But, as far as the instant case is concerned, no such test is seen
to have been conducted. Being so, the petitioner cannot be prosecuted
for the offence under Section 185 of the Motor Vehicles Act. Even
though the prayer is to quash the further proceedings as a whole, I find
no sustainable ground for doing so.
In the result, the Crl.M.C is allowed to the limited extent of
quashing further proceedings against the petitioner under Section 185
of the Motor Vehicles Act. It is made clear that this order does not
preclude the court from proceeding with the case for the other
offences.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE FINAL REPORT IN CRIME
NO.30/2020 OF KANNAPURAM POLICE STATION,
KANNUR DATED 8/3/2020
ANNEXURE A2 A MEDICAL CERTIFICATE IS ISSUED ON
21.1.2020 FROM MARTIN DE PORRES HOSPITAL,
CHERUKUNNU. MEDICAL CERTIFICATE ISSUED BY
DR.ABOOBACKER, OF MARTIN DE PORRES
HOSPITAL, CHERUKUNNU
ANNEXURE A3 A PHOTOCOPY OF THE ORDER IN
CRL.M.CNO.5562/2019 DATED 4/11/2019 OF THIS
HON'BLE COURT
