1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3572 OF 2009 Shri Naresh Dinkar Tari ... Applicant versus State of Maharashtra ... Respondent ... Mr.M.K. Kocharekar for petitioner Ms.A.T. Jhaveri APP for the State. CORAM : D.G. KARNIK, J. DATED : 24th November 2009 ORAL ORDER:- 1. Admit. By consent, heard forthwith. 2. By this application under section 482 of the Code of Criminal Procedure, the applicant challenges the order of conviction and sentence imposed upon him by the Metropolitan Magistrate by his order dated 9th July 2009 and confirmed in Criminal Revision Application no. 107 of 2009 by the learned Addl. Sessions Judge for Greater Mumbai on 31st July 2009. 3. At wee hours of 2.45 a.m., on 9th July 2009 the applicant was sighted driving a motor cycle by a police officer. The applicant was 2 accosted and was subjected to a breath analysis test which showed presence of 499 milligram of alcohol per 100 ml in his blood. The police officer directed the applicant to appear before the Special Metropolitan Magistrate, Bandra at 11.00 a.m on 9th July 2009. Accordingly, the applicant appeared before the Magistrate and his plea was recorded forthwith. The applicant pleaded guilty whereupon he was convicted and sentenced to Simple Imprisonment of 25 days with a fine of Rs.2,000/- and in default to undergo Simple Imprisonment for 10 days. The licence of the applicant was also suspended for 10 months. 4. Aggrieved by the order of conviction and sentence, the applicant filed a revision application before the Court of Sessions Gr. Mumbai. Before the Court of Sessions the applicant contended that he was misguided by the police officer to plead guilty and further contended that the particulars of offence of which he was accused and the consequences of pleading guilty were not explained to him properly as required u/s.251 of the Code of Criminal Procedure. By reason of the faulty plea and on account of the misguidance of the police officer present, the accused pleaded guilty. Rejecting the contentions the revision application was dismissed. The applicant has therefore approached this court. 5. Section 251 of the Code of Criminal Procedure reads thus: 251. Substance of accusation to be stated – When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the 3 offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge” In a summons case, charge is not required to be framed but a duty is cast upon the Magistrate to state to the accused the particulars of the offence of which he is accused and then ask him whether he pleads guilty or has any defence to make. In the present case, the particulars of alleged offence were explained to the applicant-accused. “That you accused on 9th July 2009 at 2.45 hours at Vakola Junction Santacruz (E) Mumbai have been driving vehicle under influence of liquor and thereby committed offences punishable u/s.185 of the Motor Vehicles Act” The short question that arises for my consideration is whether the particulars of offence of which the applicant was accused were properly explained to the applicant-accused. The applicant was only told that he was accused of committing an offence under section 185 of the Motor Vehicles Act without explaining what were the essential ingredients of that section. In my view, this was not proper for the reasons indicated below:- 6. Section 185 of the Motor Vehicles Act after its amendment made in the year 1994 reads as under:- 4 185. Driving by a drunken person or by a person under the influence of drugs – 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) (b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both. Clause (a) of section 185 of the Motor Vehicles Act prior to 14th November 1994 read thus:- “(a) has, in his blood, alcohol in any quantity, howsoever small the quantity may be, or” 5 Prior to 14th of November 1994, a person was driving or attempting to drive a motor vehicle with howsoever small quantity of alcohol in his blood was guilty of an offence u/s.185. However, by reason of an amendment made in section 185 by Act 54 of 1994 w.e.f. 14/11/1994 a person is not guilty of an offence under section 185 of the Motor Vehicles Act unless the quantity of alcohol in his blood exceeds 30 mg per 100 ml of blood detected in a test by breath analyser. Thus a person having driving or attempting to drive a motor vehicle even after consuming alcohol is not guilty of an offence u/s.185 of the Motor Vehicles Act unless the quantity of alcohol in his blood, as tested by a breath analyser, exceeds 30 mg per 100 ml of blood. Presence of 30 mg or more of alcohol per 100 ml of blood is an essential requirement of an offence under clause (a) of section 185 of the Motor Vehicles Act. In the accusation which was explained by the Magistrate to the accused it was not stated that the accusation against him was that he was accused of having 30 mg or more of alcohol per 100 ml in his blood while he was driving the motor vehicle. The essential ingredient of the offence that the applicant had 30 mg or more of alcohol per 100 ml in his blood was not at all stated to the applicant and was not explained to him. It is possible that accused had consumed some alcohol which would not have raised level of alcohol in his blood to less than 30 mg per 100 ml of blood. But under a belief that presence of even a smallest amount of alcohol in the blood while driving a motor vehicle is an offence, the accused might have pleaded guilty without knowing that presence of 30 mg of alcohol or more per 100 ml in the blood is an essential ingredient of an offence u/s.185 of the Motor Vehicles Act. In my view, therefore, the particulars of the offence of which he was 6 accused were not properly explained to the applicant-accused by the learned Magistrate and the trial is therefore vitiated. 7. Even the sentence imposed on the applicant appears to be too harsh. This appears to be his first offence. Atleast there is nothing on record to show that applicant was previously convicted of similar or any other offence whatsoever. The applicant has not only been sentenced to suffer Simple Imprisonment of 25 days, which appears to be too harsh. If he is a government servant and remains in custody/jail for more than 48 hours he may be suspended or dismissed. His licence is also suspended for 10 months. The applicant is living in a commercial city of Mumbai and may perhaps be required to commute to his work everyday on a motorcycle. Considering awfully poor public transport system, suspension of a licence for a long period of 10 months would be too harsh. If he is a salesman required to travel to different places daily, he may be out of job. Several factors are required to be taken into consideration while imposing a sentence. This does not appear to have been done. Sub-section (2) of section 235 of the Code of Criminal Procedure says that if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence and then pass sentence on him according to law. The learned Judge merely recorded the plea of the accused but thereafter did not put to him any question regarding the sentence. There is nothing on record to show that applicant was heard on the question of sentence. The accused was not given an opportunity to show existence of any circumstance which would deserve leniency or which would entitle him to an order of probation u/s.360 of the Code of Criminal Procedure. The offence, the 7 production of the accused before the court, recording of the plea, and the order of conviction and sentence were passed on the same day and in fact within few hours of the offence. The offence was allegedly committed at 2.45 a.m on 9th July 2009, He was convicted and sentenced by forenoon and in any event before the closing of the court hours on the same day. Provisions of section 235(2) do not appear to have been followed. 8. Consequently, application is required to be allowed and the matter is required to be remanded back to the Magistrate for fresh trial in accordance with law. The Magistrate shall state to the accused the particulars of the offence alleged against the applicant and then record his plea. If he does not plead guilty the Magistrate shall proceed with the trial in accordance with law. If the applicant pleads guilty or on trial is found guilty the Magistrate shall give him an opportunity of hearing regarding the sentence in accordance with section 235(2) of the Code of Criminal Procedure. 9. For these reasons, the order of conviction and sentence dated 9th July 2009 passed by the Special Metropolitan Magistrate, Bandra Court, Mumbai in Criminal Case no.18692/H/09 and the order of the Court of Sessions, Gr.Mumbai dated 31st July 2009 passed in Criminal Revision Application 1107 of 2009 are set aside and the case is remanded back to the Magistrate for fresh trial in accordance with the observations made herein above. (D.G. KARNIK,J.)