IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 Crl.MC.No. 924 of 2008() ------------------------ ST.2056/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... PETITIONER: ACCUSED: -------------------- K.P. SANTHOSH KUMAR, S/O. LATE SUKUMARAN, ARA 19, MANJUSHA, VELLUVELI LANE, MOTHER THERESA ROAD, ERNAKULAM. BY ADV. SMT.K.V.RESHMI RESPONDENTS: COMPLAINANT & STATE: --------------------------------- 1. S.I. OF POLICE, CITY TRAFFIC POLICE STATION, EDAPPALLY. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ========================= CRL.M.C. NO.924 OF 2008 ========================= Dated this the 11th day of March 2008 JUDGMENT The petitioner, who is the accused in Crime No.6354/2006 of City Traffic Police Station, Edappalli and now pending as S.T.2056/2007 on the file of the JFCM II, Aluva for offences punishable under Sections 184 and 185 of the Motor Vehicles Act 1988, seeks to quash the final report as well as the aforesaid case, so far as they relate to the offence punishable under Section 185 of the Motor Vehicles Act. 2. According to the prosecution on 9.12.2006, the petitioner, under the influence of alcohol, drove his motor cycle bearing Reg.No.KL-7/AY 748 in a rash and negligent manner endangering human life and he was nabbed by the public and the petitioner has thereby committed offences punishable under Sections 184 and 185 of the Motor Vehicles Act. 3. In order to substantiate the charge under Section 185 of the Motor Vehicles Act, the prosecution CRL.M.C.924/2008 2 will have to prove that the accused person, while driving the vehicle in question, was having in his blood alcohol exceeding 30 mg. 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. The prosecution 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. The certificate of drunkenness produced along with the complaint only shows that the petitioner consumed alcohol but was not under its influence. Admittedly the petitioner has not been subjected to a breath analyzer test to ascertain the fact that he was in a drunken state within the meaning of 185 of the Motor Vehicles Act. Without subjecting the petitioner to a breath analyzer test, the prosecution cannot sustain the charge for the CRL.M.C.924/2008 3 offence under Section 185 of the Motor Vehicles Act. {See Shibu v State of Kerala (2006(4) KLT 747) as also the decision dated 2.1.2008 in Crl.M.C.3813/2007}. Accordingly, S.T.2056/2007 on the file of the JFCM II, Aluva, so far as it relates to the offence punishable under Section 185 of the Motor Vehicles Act, is hereby quashed. The prosecution of the petitioner for the offence punishable under Section 184 of the Motor Vehicles Act will however, continue. Crl.M.C. is allowed as above. V.RAMKUMAR, JUDGE css/