1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3704 OF 2009 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. Prakash Naik i/b C.P. & Associates for the applicant. Mr. S.N. Gawade, A.P.P. for the State. CORAM : D.G. KARNIK, JJ. DATE : 25TH NOVEMBER 2009 P.C. : 1. Admit. By consent, taken up for hearing forthwith. 2. Earlier, learned A.P.P. had raised an objection that the petition under section 482 of the Cr. P.C. is not maintainable for the purpose of quashing of an order of conviction passed by the learned Magistrate and confirmed by the 2 Court of Sessions in revision. Learned A.P.P. gives up the objection at this stage. 3. The applicant was convicted for an offence punishable under section 185 of the Motor Vehicles Act and sentenced to suffer simple imprisonment for 15 days and pay a fine of Rs.2000/- and in default to suffer further imprisonment of one month. His motor vehicle licence was also cancelled permanently. The accusation against the applicant was that he was driving a motor car on 26th June 2009 while he was under influence of alcohol. 5. Under section 185 of the Motor Vehicles Act (for short “the Act”), as amended by Act No. 54/1994 with effect from 14th November 1994, driving a motor vehicle while there is alcohol in the blood of the driver is not per se an offence. Bare reading of clause (a) of section 185 of the Act makes it clear that driving or attempting to drive a motor vehicle while a person has in his 3 blood alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, is an offence. In other words, driving a vehicle by a person while the level of alcohol in his blood is 30 mg per 100 ml. of blood, or less is not an offence under section 185 of the Act. In the present case, though the accused has pleaded guilty, the accusation against him was not explained to him. It was not put to him that the accusation against him was that he was diriving a motor vehicle while the level of alcohol in his blood was exceeding 30 mg. per 100 ml. of blood. In Naresh Dinkar Tari v. State of Maharashtra – Criminal Application No.3572 of 2009 decided on 24/11/2009 (Coram: D.G. Karnik, J.), I have held that the accused must be explained that the accusation against him was driving a motor vehicle with more than 30 mg. of alcohol in 100 ml. of blood. Obviously, this has not been done in the present case. 6. In the circumstances, the plea of guilt 4 recorded by the Magistrate was improper. The conviction of the applicant on such faulty plea cannot be sustained. The impugned order of conviction and sentence passed by the Magistrate and confirmed by the Court of Sessions is therefore required to be set aside and is accordingly set aside. The matter is remanded back to the Magistrate for fresh trial by recording the plea in appropriate manner as laid down by this Court in the decision mentioned above. 7. The applicant shall remain present before the Magistrate on 14th December 2009. (D.G. KARNIK, J.)