IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 Crl.MC.No. 1926 of 2008() ------------------------- CRIME 361/08 OF CENTRAL POLICE STATION, ERNAKULAM PETITIONER: ------------ SEBASTIAN K.M,AGED 43,S/O.MATHEW, MATTUNILATH HOUSE,KASSIM ROAD,NEAR LISSY HOSPITAL, KALOOR,KOCHI-17. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: ------------- STATE OF KERALA (CRIME NO.361/2008, S.I OF POLICE,CENTRAL POLICE STATION, ERNAKULAM),REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 1926 OF 2008 ----------------------------------------------- Dated this the 23rd day of June, 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable under Sections 184 and 185 of the Motor Vehicles Act. The petitioner has come to this Court with a prayer that powers under Section 482 Cr.P.C may be invoked to quash the proceedings against him, in so far as it relates to the allegations under Section 185 of the Motor Vehicles Act. The learned counsel for the petitioner has got an affidavit filed by the petitioner to confirm that the quashing of the proceedings under Section 185 of the Motor Vehicles Act is relevant since without that offence, he does not want to make any defence and wants to plead guilty for the allegation under Section 184 of the Motor Vehicles Act. 2. The learned counsel for the petitioner submits that no breath analysor test having been conducted and there being no allegation even that the petitioner did have any quantity of alcohol found in the blood of the petitioner [and in the absence of even the semblance of an allegation that the petitioner had refused to take Crl.M.C. No. 1926 OF 2008 2 the breath analysor test or the blood test], the prosecution against him under Section 185 of the Motor Vehicles Act must fall to the ground. The learned counsel relies on a decision of this Court in Shibu v. State of Kerala [2006(4) KLT 747], which is authority for the proposition that without breath analysor test being conducted and in the absence of any explanation for not conducting such test the prosecution under Section 185 cannot lie. 3. Notice was given to the learned Public Prosecutor. The learned Prosecutor does not opposes the said prayer. I am satisfied in the facts and circumstances of this case that this petition can be allowed and appropriate directions issued. 4. In the result: i) This petition is allowed in part. ii) The prosecution against the petitioner in ST No.1828/08 before the JFMC-II, Ernakulam, in so far as the allegations under Section 185 of the Motor Vehicles Act are concerned, is hereby quashed. 5. Needless to say that prosecution under Section 184 shall Crl.M.C. No. 1926 OF 2008 3 continue and the learned Magistrate shall proceed to consider the plea of guilty which the petitioner wants to raise. R. BASANT, JUDGE ttb Crl.M.C. No. 1926 OF 2008 4 Crl.M.C. No. 1926 OF 2008 5