N.BABU v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 Crl.MC.No. 3813 of 2007() ------------------------- ST.2157/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER: -------------------- N.BABU, S/O. NARAYANAN, AGED 53, ILLIKKATT HOUSE, NH-17, EDAPPALLY, ERNAKULAM. BY ADV. SRI.BEPIN VIJAYAN RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

V.S.NAVAS, SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J.= = = = = = = = = = = = = Crl.M.C.No.3813 of 2007= = = = = = = = = = = = = = Dated this the 2nd day of January, 2008ORDERHeard both sides.2. In this petition filed under Section 482 Cr.P.C, the petitioner who is the accused in Crime No.571/07 of Palarivattom Police Station for offences punishable under Sections 184 and 185 of the Motor Vehicles Act 1988, seeks to quash Ext.P1 final report filed before the J.F.C.M-I, Ernakulamand taken cognizance of as S.T.No.2157 of 2007.

According to the prosecution, the petitioner was, on18.8.2007, at about 7.45 p.m. driving his Hyundai Accent car bearing Registration No.KL-7-AP/6603 in a manner dangerous to the public and was drunken at that time and the petitioner thereby committed offences punishable under Sections 184 and185 of the Motor Vehicles Act 1988.

In order to substantiate the charge under Sec.185 of the Motor Vehicles Act, the prosecution has to prove that the Crl.M.C.No. 3813 of 20072accused person while driving the motor cycle or attempting to drive the same was having in his blood alcohol exceeding 30mg per 100 ml detected in a test by a breath analyzer or was under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle. Theprosecution has no case that the petitioner was under the influence of a drug falling under clause 'b' of Section 185 of the Motor Vehicles Act. The prosecution relies on clause 'a' of the said section to bring home the guilt of the petitioner. Thecertificate of drunkenness produced along with the complaint also shows that the petitioner was not under the influence of alcohol which he had consumed. Admittedly the petitioner has not been subjected to the breath analyzer test to ascertain the fact that he was in a drunken state within the meaning of Section 185 of the Act. In the light of the decision Shibuv. State of Kerala (2006(4) KLT 747), without subjecting the petitioner to a breath analyzer test, the prosecution cannot sustain the charge for the offence under Section 185 of the Motor Vehicles Act. Hence the charge in that behalf is absolutely baseless and proceedings before the learned Crl.M.C.No. 3813 of 20073Magistrate in S.T.No.2157/07 so far as they relate to the offence under Sec.185 of the Motor Vehicles Act 1988, are quashed.

As for the prosecution allegation that the accused committed an offence under Section 184 of the MotorVehicles Act 1988, that is a matter to be considered after the trial of the case and no ground exists for quashing the complaint so far as it relates to the offence under Section 184of the Motor Vehicles Act. Hence this Crl.M.C is allowed in part. V. RAMKUMAR, JUDGE sj