IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 WP(C).No. 7632 of 2009(Q) ------------------------- CC.3007/2008 of J.M.F.C.-II, ERNAKULAM .................... PETITIONER(S): --------------- SHAJAN GEORGE, S/O.GEORGE, AGED 45 YEARS, 4/41, N.G.O. QUARTERS, THRIKKAKKARA, KAKKANAD VILLAGE. BY ADV. SRI.R.PADMARAJ SRI.N.P.SETHU SRI.K.M.VIKAS SRI.P.J.ANTONY JOSEPH MARIADAS SRI.BIJU HARIHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, KERALA POLICE, THIRUVANANTHAPURAM. 3. THE S.I. OF POLICE, CITY TRAFFIC POLICE STATION (WEST), KOCHI CITY, ERNAKULAM DISTRICT. PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 7632 OF 2009 = = = = = = = = = = = = = = = Dated this the 17th day of March, 2009. J U D G M E N T This writ petition is filed with a prayer to give direction to the police officers to strictly follow the procedure provided under Motor Vehicles Act including the use of breath analyzer and issue a writ of certiorari and quash the proceedings which has resulted in Ext.P3 charge sheet. I had perused the materials produced and available before me. Ext.P1 is the First Information Statement. What is stated therein is there was a smell of alcohol and when breath analyzer test was done it produce a sound 'beep beep'. It is also averred that the rider of the vehicle was driving the vehicle carelessly and negligently so as to endanger human life. A perusal of 185 of the M.V. Act would show that in order to attract that offence a person who drives the vehicle should have in his blood alcohol exceeding 30mg per 100 ml of blood detected in a test by a breath analyzer. The only document that is W.P.C 7632 OF 2009 -:2:- available before me is Ext.P2 which does not give any of these particulars except the statement that the person has consumed alcohol but not under the influence of alcohol. So unless and until mandate of S.185 is statutorily complied no action u/s 185 can lie and therefore in this case it cannot be proceeded under Section 185 of the M.V.Act. S.279 IPC is independent of S.185 of the M.V. Act and an action will lie and that the result depend upon the materials available in the case. Therefore I dispose of this writ petition whereby quashing the charge u/s 185 M.V.Act and retaining the charge u/s 279 of IPC. I also feel the prosecutors must give necessary instructions to the police authorities to properly conduct the breath analyzer test and record the statutory requirement in the file so as to enable a Court of law to understand whether it has been done properly or not. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-