the blood can be considered 'safe'; at the highest, a specified quantity is
a generalized norm, one that does not allow for the very wide variations
that may result from one person to the next. There is, in fact, no reason
why any person who has had any amount to drink should be permitted
to drive at all. Given the alternatives available, and having regard to
the manifest risks especially to third parties, we would strenuously urge
the adoption by the Central Government of a zero tolerance policy
toward drunk driving. We see no reason why the police should be
burdened with having to prove whether or not a person is above or
below any particular limit; the mere presence of alcohol in the blood
should, in our view, be sufficient to disentitle a person from driving. In
itself, this would facilitate the work of the police and go a long way to
ensuring safety on our roads, apart from lessening the forensic burden
on enforcement agencies.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.77 OF 2002
Mr. Nikhil Wagle and Others. .. Petitioners
Vs
The State of Maharashtra and Others. .. Respondents
CORAM : A.S. OKA & G.S. PATEL, JJ
DATE ON WHICH THE ORDER IS PRONOUNCED: 7TH JANUARY 2016.
1. Rule has been already issued in this Public Interest
Litigation and the same is pending for final disposal. This Public
Interest Litigation has appeared on board from time to time under the
caption of “Directions” for reporting compliance by the Union of India
with the directions issued earlier. The occasion for filing the present
Public Interest Litigation is an incident of the early morning of 28th
November 2002 in Mumbai in which the Fourth Respondent, who is a
popular Hindi Cinestar, was allegedly involved. During the pendency of
this Petition, he was convicted by the Court of Sessions for various
offences including those punishable under Section 304 Part II of the
Indian Penal Code and Section 185 of the Motor Vehicles Act,1988(for
short “M.V.Act”). It is alleged that he was found driving a car while he
was under the influence of alcohol.
2. The order of conviction passed by the Sessions Court was
set aside by learned Single Judge of this Court1
. Today, the learned
Government Pleader on instructions states that the State Government
has taken a decision to immediately prefer a Special Leave Petition
before the Apex Court for challenging the said judgment and order of
the learned Single Judge of this Court. He states that the Special Leave
Petition will be filed in January 2016. In view of this statement, for the
time being, we are not considering the implications of the observations
made by the learned Single Judge in the said judgment and order about
the major defects in the investigation. Nevertheless, appropriate
interim directions will have to be issued considering the fact that in the
recent past, there have been large number of cases involving violation
of Section 185 of the M.V. Act. During last few years there have been
number of cases of accidents involving motor vehicles driven by persons
1 Criminal Appeal No.572 of 2015 decided on 7th, 8th, 9th and 10th December 2015.
who were under the influence of alcohol and who were guilty of
violation of clause (a) of Section 185 of the M.V.Act.
3. The Apex Court has dealt with the issue of drunken driving
in several cases. Recently, in the case of State Through P.S. Lodhi
Colony, New Delhi v. Sanjeev Nanda2
. In paragraph 86, the Apex
Court has succinctly noted the issue involved which reads thus:
“86. Drunken driving has become a menace to our
society. Everyday drunken driving results in
accidents and several human lives are lost,
pedestrians in many of our cities are not safe. Late
night parties among urban elite have now become
a way of life followed by drunken driving. Alcohol
consumption impairs consciousness and vision and
it becomes impossible to judge accurately how far
away the objects are. When depth perception
deteriorates, eye muscles lose their precision causing
inability to focus on the objects. Further, in more
unfavourable conditions like fog, mist, rain etc.,
whether it is night or day, it can reduce the visibility of
an object to the point of being below the limit of
discernibility. In short, alcohol leads to loss of
coordination, poor judgment, slowing down of
reflexes and distortion of vision.”
4. Driving by a drunken person or by a person under the
influence of drugs is made punishable under Section 185 of the M.V.
Act. Section 185, which reads thus:
“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,
2 (2012)8 SCC 450
[(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 this 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.
Explanation.—For the purposes of this section,
the drug or drugs specified by the Central Government
in this behalf, by notification in the Official Gazette,
shall be deemed to render a person incapable of
exercising proper control over a motor vehicle.”
5. Apart from this penal provision under the M.V. Act,
depending upon the facts of the case, the offences punishable under
Sections 279, 304 (PartII) and 304A of the Indian Penal Code may be
attracted.
6. On a plain reading of Section 185 of the M.V. Act, the
offence of driving by a drunken person (popularly known as “Drunken
Driving”) is established when in his blood, alcohol exceeding 30 mg per
100 ml of blood is detected in his breath test. On this aspect, Sections
203 and 204 of the M.V. Act also relevant which read thus:
“203. Breath tests.— [(1) A police officer in uniform or
an officer of the Motor Vehicles Department, as may be
authorised in this behalf by that Department, may
require any person driving or attempting to drive a
motor vehicle in a public place to provide one or more
specimens of breath for breath test there or nearby, if
such police officer or officer has any reasonable cause
to suspect him of having committed an offence under
section 185:
Provided that requirement for breath test shall
be made (unless, it is made) as soon as reasonably
practicable after the commission of such offence.]
2. If a motor vehicle is involved in an accident in a
public place and a police officer in uniform has any
reasonable cause to suspect that the person who was
driving the motor vehicle at the time of the accident
had alcohol in his blood or that he was driving under
the influence of a drug referred to in section 185 he
may require the person so driving the motor vehicle,
to provide a specimen of his breath for a breath test—
(a) in the case of a person who is at a
hospital as an indoor patient, at the
hospital,
(b) in the case of any other person, either at
or near the place where the requirement
is made, or, if the police officer thinks fit,
at a police station specified by the police
officer:
Provided that a person shall not be required to provide
such a specimen while at a hospital as an indoor
patient if the registered medical practitioner in
immediate charge of his case is not first notified of the
proposal to make the requirement or objects to the
provision of a specimen on the ground that its
provision or the requirement to provide it would be
prejudicial to the proper care or treatment of the
patient.
3. If it appears to a police officer in uniform, in
consequence of a breath test carried out by him on any
person under subsection (1) or subsection (2) that
the device by means of which the test has been carried
out indicates the presence of alcohol in the person’s
blood, the police officer may arrest that person
without warrant except while that person is at a
hospital as an indoor patient.
4. If a person, required by a police officer under
subsection (1) or subsection (2) to provide a
specimen of breath for a breath test, refuses or fails to
do so and the police officer has reasonable cause to
suspect him of having alcohol in his blood, the police
officer may arrest him without warrant except while
he is at a hospital as an indoor patient.
5. A person arrested under this section shall while
at a police station, be given an opportunity to provide
a specimen of breath for a breath test there.
6. The results of a breath test made in pursuance
of the provisions of this section shall be admissible in
evidence.
Explanation.—For the purposes of this section “breath
test”, means a test for the purpose of obtaining an
indication of the presence of alcohol in a person’s
blood carried out on one or more specimens of breath
provided by that person, by means of a device of a
type approved by the Central Government by
notification in the Official Gazette, for the purpose of
such a test.
204. Laboratory test.— (1) A person who has been
arrested under section 203 may, while at a police
station be required by a police officer to provide to
such registered medical practitioner as may be
produced by such police officer, a specimen of his
blood for a laboratory test if,—
(a) it appears to the police officer that the
device, by means of which breath test
was taken in relation to such person,
indicates the presence of alcohol in
the blood of such person, or
(b) such person, when given the
opportunity to submit to a breath test,
has refused, omitted or failed to do
so:
Provided that where the person required to provide
such specimen is a female and the registered medical
practitioner produced by such police officer is a male
medical practitioner, the specimen shall be taken only
in the presence of a female, whether a medical
practitioner or not.
2. A person while at a hospital as an indoor
patient may be required by a police officer to provide
at the hospital a specimen of his blood for a laboratory
test—
(a) if it appears to the police officer that
the device by means of which test is
carried out in relation to the breath of
such person indicates the presence of
alcohol in the blood of such person, or
(b) if the person having been required,
whether at the hospital or elsewhere,
to provide a specimen of breath for a
breath test, has refused, omitted or
failed to do so and a police officer has
reasonable cause to suspect him of
having alcohol in his blood:
Provided that a person shall not be required to provide
a specimen of his blood for a laboratory test under this
subsection if the registered medical practitioner in
immediate charge of his case is not first notified of the
proposal to make the requirement or objects to the
provision of such specimen on the ground that its
provision or the requirement to provide it would be
prejudicial to the proper care or treatment of the
patient.
3. The results of a laboratory test made in
pursuance of this section shall be admissible in
evidence.
Explanation.—For the purposes of this section,
“laboratory test” means the analysis of a specimen of
blood made at a laboratory established, maintained or
recognised by the Central Government or a State
Government.”
7. Under Section 203, if an officer in uniform or an officer of
the Motor Vehicles Department as may be authorized in this behalf by
the Motor Vehicles Department, may require any person driving or
attempting to drive a motor vehicle in a public place to provide one or
more specimens of breath for breath test there or nearby, if such officer
has any reasonable cause to suspect him of having committed an
offence under Section 185 of the M.V. Act. The proviso to Subsection
(1) thereto lays down that the breath test shall be taken as soon as
reasonably practicable after commission of such offence. Subsection
(2) deals with a case where a motor vehicle is involved in an accident in
a public place. Subsection (2) is applicable when a police officer in
uniform has any reasonable cause to suspect that the person who was
driving the motor vehicle at the time of the accident had alcohol in his
blood. In such a case, the police officer may require the person so
driving the motor vehicle to provide a specimen of his breath for
conducting a breath test. The Explanation defines breath tests. A breath
test can be conducted only by means of a device of a type approved by
the Central Government by a notification in the Official Gazette. Subsection
(3) of Section 203 provides for the arrest of a person without
warrant after the presence of alcohol is detected in such person's blood
after a test of his breath.
8. Subsection (1) of Section 204 of the M.V. Act lays down
that a person who has been arrested under Section 203, while at the
police station, may be required by a police officer to provide to such
registered medical practitioner as may be produced by such police
officer, a specimen of his blood for a laboratory test. He can be
subjected to such a blood test if it appears to the police officer that the
device by means of which breath test was taken in relation to such
person indicates the presence of alcohol in the blood of such person.
When any person who is given an opportunity to submit to a breath test
refuses, omits or fails to do so, even he can be subjected to a blood test.
9. We must note here that the plain language of Section 185
of the M.V. Act makes it clear that an offence punishable under Section
185 of the M.V. Act can never be proved unless it is proved that the
person concerned while driving or attempting to drive a motor vehicle
has in his blood alcohol exceeding 30 mg per 100 ml. Therefore, the
conduct of a proper breath test by a device approved by the Central
Government, at the proper time, is of a great deal of importance. Only
after the accused is arrested in accordance with the subsections (3)
and (4) of Section 203 that the police officer can exercise the powers
under Section 204 of the M.V. Act of requiring the accused to provide a
specimen of his blood for laboratory test. Thus, a person cannot be
sent for laboratory test unless he is arrested.
10. On the conduct of the laboratory test as provided under
Section 204 of the M.V. Act, in the case of State Through P.S. Lodhi
Colony, New Delhi v. Sanjeev Nanda, Justice Radhakrishnan, in his
separate Judgment in paragraph 82 has held thus:
“82. The accused, in this case, escaped from the
scene of occurrence, therefore, he could not be
subjected to breath analyser test instantaneously,
or to take or provide specimen of his breath for a
breath test or a specimen of his blood for a
laboratory test. The cumulative effect of the
provisions, referred to above, would indicate that
the breath analyser test has a different purpose
and object. The language of the above sections
would indicate that the said test is required to be
carried out only when the person is driving or
attempting to drive the vehicle. The expressions
“while driving” and “attempting to drive” in the
above sections have a meaning “in praesenti”. In
such situations, the presence of alcohol in the
blood has to be determined instantly so that the
offender may be prosecuted for drunken driving. A
breath analyser test is applied in such situations so
that the alcohol content in the blood can be
detected. The breath analyser test could not have
been applied in the case on hand since the accused
had escaped from the scene of the accident and
there was no question of subjecting him to a
breath analyser test instantaneously. All the same,
the first accused was taken to AIIMS Hospital at 12.29
p.m. on 1011999 when his blood sample was taken
by Dr Madhulika Sharma, Senior Scientific Officer
(PW 16). While testing the alcohol content in the
blood, she noticed the presence of 0.115%
weight/volume ethyl alcohol. The report exhibited as
PW16/A was duly proved by the doctor. Over and
above, in her crossexamination she had explained
that 0.115% would be equivalent to 115 mg per 100
ml of blood and deposed that as per traffic rules, if the
person is under the influence of liquor and alcohol
content in blood exceeds 30 mg per 100 ml of blood,
the person is said to have committed the offence of
drunken driving.”
(emphasis added)
Thus, in such a case where the breath test could not be
conducted, the conduct of the blood test at the earliest assumes a great
deal of importance. The Editor of the report (in Supreme Court Cases)
has appended a note to the Head Notes of the said Judgment in the
case of Sanjeev Nanda which reads thus:
“Ed.: In order to understand the import of Section
185 of the Motor vehicles Act, 1988, it is necessary to
study the biological process which is set in motion
when alcohol is consumed. Alcohol is a depressant.
When alcohol goes into the stomach it mixes with
blood and then through the circulatory system, it
diffuses into the whole body. It primarily affects the
central nervous system, particularly the brain (vide
Richard Saferstein: Criminalistics, 10th Edn., p. 214).
Biologically, drunkenness is a temporary impairment
of the nervous system caused due to consumption of
alcohol.
In order to determine how much a particular person is
affected by alcohol consumption, the ideal situation is
to examine his brain tissues but practically it is not
feasible to interfere with such a sensitive organ of a
living human being, simply to know the effect of
alcohol. Scientists have therefore found an alternative
method of detecting the effect of alcohol in the body
through blood examination. There is a close
correlation between the concentration of alcohol in
the blood and in the brain. If the concentration of
alcohol in the blood is detrmined, this will in turn
determine the level up to which it has affected the
nervous system.
Saferstein puts it like this: “From a medicolegal point
of view, bloodalcohol levels have become the
accepted standard for relating alcohol intake to its
effect on the body.” (p. 215) However, blood analysis
requires expert medical examination which should be
carried out in clinical conditions in a property
equipped laboratory. This is therefore not a very
handy method for traffic police who has to keep a
watch over hundreds of drivers to know whether they
are sober or drunken. The problem arises particularly
when traffic on highways has to be watched at night.
It is because of this difficulty, that portable devices
called breath analysers or testers have been devised
which can be used conveniently by the police. These
devices estimate the presence of alcohol through
alveolar breath but they by no means completely
dispense with the requirement of blood breath but
they by no means completely dispense with the
requirement of blood examination in certain cases.
Quoting Saferstein again, results obtained through
modern portable instruments like an alcosensor or
alcometer should be considered preliminary and nonevidential
in nature. They establish only a probable
cause for requiring an individual to submit to a more
thorough breath or blood test (p.222).
Thus the position which emerges is that a portable
breath analyser may be a useful device to conduct
a preliminary test at the spot when a drunken
driver is caught on the road but this is not the only
test to determine the effect of alcohol. There are
other sophisticated techniques like gas
chromatography through which the presence of
alcohol in blood can be detected with a high
degree of accuracy. It may therefore be possible to
book a drunken driver under Section 185 of the
MV Act, 1988 on the basis of a test conducted on a
portable device provided his only fault is that he
was found drunken on the road but did not
otherwise cause any harm. Mention of a breath
analyser in Section 185, it is suggested, must be
understood in this perspective. However, if a
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drunken driver has caused a serious accident or
some other harm so as to be liable for punishment
under the Penal Code, 1860. Section 185, it is
submitted, does not exclude detailed medical
examination which may be conducted under
Section 53 of the Criminal Procedure Code, 1973.
Even otherwise, a breath analyser can be used
when a drunken driver is caught at the spot. If he
has fled from scene and is caught later on, say
after a few hours, the prudent approach seems to
be to subject him to blood analysis and other
method tests. In such a situation, the task of
prosecution becomes more onerous inasmuch as
an additional fact has to be proved: that the
offending driver had consumed liquor before the
mishap took place. Authoritative works on
Toxicology do not provide much material about the
estimation of time when alcohol might have been
consumed but still some useful guidelines are
available. According to Safestein, “Depending on a
combination of factors, maximum bloodalcohol
concentration may not be reached until two or three
hours have elapsed from the time of consumption.
However, under normal social drinking conditions, it
takes anywhere from 30 to 90 minutes from the time
of the final drink until the absorption process is
completed.” (p.215) Once alcohol has been absorbed
in the body, then the elimination process starts.
Elimination takes place through oxidation and
excretion of alcohol. Again, according to Saferstein,
“The elimination or burn off rate of alcohol varies in
different individuals: 0.015 per cent w/v (weight per
volume) per hour seems to be the average rate once
the absorption process is complete. However, this
figure is an average that varies by as much as 30%
among individuals.” (p.216) In Modi's Medical
Jurisprudence and Toxicology (23rd Edn.), it is
mentioned that alcohol in blood diminishes at the rate
of 1215 mg per hour (p.312). Considering that
Saferstein qualifies his opinion both as to the time it
takes for alcohol to be absorbed and with the
possibility of a 30% variation as to the rate of
elimination depending on the individual, it is
submitted that the prosecution would have to produce
some other evidence in addition to the medical
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evidence, relating to the time of consumption of
alcohol.”
(Emphasis added )
11. The Editor has observed that a portable breath analyser
may be a useful device to conduct a preliminary test at the spot when a
drunken driver is caught on the road but this is not the only test to
determine the effect of alcohol. We find that neither the M.V.Act nor the
Rules framed thereunder lay down the procedure to be followed while
conducting breath test and blood test. In case of the Maharashtra
Prohibition Act,1948 the Bombay Prohibition Medical Examination and
Blood Test Rules, 1959 prescribe a detailed procedure for collection of
blood samples and further steps to be taken thereafter. The State
Government and the Central Government will have to look into this
aspect. We must hasten to add that there is no illegality attached to
conduct of breath and/or blood test merely because there are no Rules.
The necessity of having the Rules or Guidelines is to ensure that the
Authorities do not commit any errors of which undue advantage taken
by the accused. The time frame for taking various steps from the
collection of blood samples will have to be fixed. There is no provision
made to properly preserve the blood samples, to immediately dispatch
the same for analysis within a specified time and to complete the
analysis within a time schedule.
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12. The first direction will have to be issued to ascertain
whether in the City of Mumbai and other Municipal Corporation Areas,
the Police Department and the Regional Transport Offices have a
sufficient number of breath test devices approved by the Central
Government by a notification in the Official Gazette. The question is
whether the State Government has provided adequate number of breath
analyser devices in working condition to the police and to the
authorised officers of the Motor Vehicles Department. Another
connected issue is of regular maintenance and checking of the proper
functioning of the devices. Moreover, it is necessary for the State to
furnish the data of cases registered under Section 185 of the M.V.Act in
Mumbai and other Municipal Corporation areas during last three years
with special reference to the cases registered on 31st December and 1st
January every year. This data is necessary with a view to ascertain
whether adequate number of devices are available to conduct the
breath tests.
13. The second direction will be as regards action to be taken
for framing Rules and/or laying down the guidelines in terms of
paragraph above.
14. The third direction will be of making available the facility of
collection of blood samples and prompt analysis thereof by providing
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mobile laboratories and by providing laboratories in all
Government/Municipal hospitals including civil and cottage hospitals as
well as in selected Primary Health Centres.
15. Another important issue is regarding the exercise of power
of suspension of driving licence of a person against whom a case is
registered under clause (a) of Section 185. Section 19 of the M.V.Act
which reads thus:
“19. Power of licensing authority to disqualify
from holding a driving licence or revoke such
licence. — (1) If a licensing authority is satisfied, after
giving the holder of a driving licence an opportunity of
being heard, that he—
(a) is a habitual criminal or a habitual
drunkard; or
(b) is a habitual addict to any narcotic drug or
psychotropic substance within the meaning
of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985); or
(c) is using or has used a motor vehicle in the
commission of a cognizable offence; or
(d) has by his previous conduct as driver of a
motor vehicle shown that his driving is likely
to be attended with danger to the public; or
(e) has obtained any driving licence or a licence
to drive a particular class or description of
motor vehicle by fraud or misrepresentation;
or
(f) has committed any such act which is likely
to cause nuisance or danger to the public, as
may be prescribed by the Central
Government, having regard to the objects of
this Act; or
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(g) has failed to submit to, or has not passed,
the tests referred to in the proviso to subsection
(3) of Section 22; or
(h) being a person under the age of eighteen
years who has been granted a learner's
licence or a driving licence with the consent
in writing of the person having the care of
the holder of the licence and has ceased to
be in such care,
it may, for reasons to be recorded in writing,
make an order—
(i) disqualifying that person for a
specified period for holding or
obtaining any driving licence to
drive all or any classes or
descriptions of vehicles specified in
the licence; or
(ii) revoke any such licence.
(2) Where an order under subsection (1) is made,
the holder of a driving licence shall forthwith
surrender his driving licence to the licensing authority
making the order, if the driving licence has not already
been surrendered, and the licensing authority shall,—
(a) if the driving licence is a driving licence issued
under this Act, keep it until the disqualification
has expired or has been removed; or
(b) if it is not a driving licence issued under this
Act, endorse the disqualification upon it and
send it to the licensing authority by which it
was issued; or
(c) in the case of revocation of any licence,
endorse the revocation upon it and if it is not
the authority which issued the same, intimate
the fact of revocation to the authority which
issued that licence:
Provided that where the driving licence of a
person authorises him to drive more than one class or
description of motor vehicles and the order, made
under subsection (1), disqualifies him from driving
any specified class or description of motor vehicles,
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the licensing authority shall endorse the
disqualification upon the driving licence and return
the same to the holder.
(3) Any person aggrieved by an order made by a
licensing authority under subsection (1) may, within
thirty days of the receipt of the order, appeal to the
prescribed authority, and such appellate authority shall
give notice to the licensing authority and hear either
party if so required by that party and may pass such
order as it thinks fit and an order passed by any such
appellate authority shall be final.”
(underlines supplied)
16. The Central Government has exercised the power under
clause (f) of subsection 1 of Section 19. Rule 21 of the Central Motor
Vehicles Rules, 1989 (for short “the Central Rules) provides thus:
“21. Powers of licensing authority to disqualify.—
For the purpose of clause ( f ) of subsection (1) of
Section 19, the commission of the following acts by
holder of a driving licence shall constitute nuisance or
danger to the public, namely:—
(1) Theft of motor vehicle.
(2) Assault on passengers.
(3) Theft of personal effects of passengers.
(4) Theft of goods carried in goods carriages.
(5) Transport of goods prohibited under any law.
2[(6) Driver while driving a transport vehicle, engages
himself in activity which is likely to disturb his
concentration.]
(7) Abduction of passengers.
(8) Carrying overload in goods carriages.
(9) Driving at speed exceeding the specified limit.
(10) Carrying persons in goods carriage, either inside
the driver's cabin in excess of its capacity or on
the vehicle, whether for hire or not.
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(11) Failing to comply with the provisions of Section
134.
(12) Failure to stop when signalled to do so by any
person authorised to do so.
(13) Misbehaviour with and showing discourtesy to
passengers, intimidating passengers or
consignors and consignees of goods.
(14) Smoking while driving public service vehicles.
(15) Abandoning vehicle in a public place causing
inconvenience to other road users or to
passengers in the vehicle.
(16) Driving vehicle while under the influence of
drink or drugs.
(17) Interfering with any person mounting or
preparing to mount upon any other vehicle.
(18) Allowing any person to sit or placing things in
such a way as to impede the driver from having
a clear vision of the road or proper control of the
vehicle.
(19) Not stopping a stage carriage at approved
stopping places for a sufficient period of time in
a safe and convenient position upon demand or
signal of the conductor or any passenger
desiring to alight from the vehicle and unless
there is no room in the vehicle, upon demand or
signal of any person desiring to become a
passenger.
(20) Loitering or unduly delaying any journey and
not proceeding to the destination as near as may
be in accordance with the timetable pertaining
to the vehicle, or, where there is no such timetable,
with all reasonable despatch.
(21) Not driving a contract carriage, in the absence of
a reasonable cause, to the destination named by
the hirer by the shortest route.
(22) The driver of a motor cab not accepting the first
offer of hire which may be made to him
irrespective of the length of the journey for
which such offer is made.
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(23) The driver of a motor cab demanding or
extracting any fare in excess to that to which he
is legally entitled or refusing to ply motor cab.
3[(24) Abandoning a transport vehicle as a mark of
protest or agitation of any kind or strike in a
public place or in any other place in a manner
causing obstructions or inconvenience to the
public or passengers or other users of such
places.]
4[(25) Using mobile phone while driving a vehicle.]”
(underlines supplied)
Clause (16) is relevant for our purpose. On a conjoint reading
of clause (f) of subsection 1 of Section 19 of the M.V.Act with clause
(16) of Rule 21 of the Central Rules, we find that on registration of an
offence under Section 185, the power to suspend the driving licence
under Section 19 can be exercised by the Licencing Authority. The
Licencing Authorities will have to invoke the said power in the cases of
violation of clause (a) of Section 185. The exercise of the said power
may have the desired deterrent effect. The State Government will have
to issue appropriate directions to ensure that there is a proper
coordination between the Police and the Licencing Authorities so that
an action of suspension of the driving licence is initiated immediately
after the offence is committed. The State Government while filing an
affidavit shall disclose the details of the number of cases in which
action of suspension of licence has been taken during last three years in
Mumbai and other Municipal Corporation areas in the cases under
Clause (a) of Section 185.
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17. At this stage, we must express our grave concern about the
growing problem of driving while under the influence of alcohol. As we
have noted, the editorial comment in the Supreme Court Cases report
clearly demonstrates the likely impairment of cognitive functions
essential to driving a vehicle caused by an intake of alcohol. While
Section 185 prescribes the socalled 'limits', we feel dutybound to
observe that these limits seem to us to be theoretical. The effect of
alcohol on an individual can vary widely. It may be a function of a
multitude of factors, including body type, the amount of food taken
before or after alcohol consumption, a genetic disposition to high or low
tolerance for alcohol, how fast the alcohol is consumed and even
external factors. These effects are well studied, but they cannot be
viewed in isolation, nor is it reasonable, in our view, to adopt any
particular norm that may be applied in other jurisdictions overseas.
Regard must necessarily be had to the conditions in our country and in
our cities: the overcrowded roads, pedestrian movement on roads, the
absence of sufficient sidewalks or pavements, a general indiscipline and
indifference to traffic regulations, and the fact, too, that our roads and
such few sidewalks as exist are used by hawkers during the day and by
the poorest of the poor at night. This makes drunken driving all the
more dangerous, and we do not think it is possible to ignore these
conditions, especially given our experience with fatalities caused to
third parties by reported incidents of drunken driving. It is not possible,
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in our view, to countenance an argument that any person has a
fundamental right to drink, let alone to drink any amount and then get
behind the wheel of a motor car or onto a twowheeler. Even the most
minute impairment caused by alcohol intake might have the most
disastrous consequences.
18. We note with a great deal of alarm and dismay that on 31st
December 2015/1st January 2016, Mumbai alone saw as many as 705
drunk driving cases, as reported by the Times of India, an increase of
35% from the previous year 31st December 2014. This Court has had
occasion in the past to permit various establishments such as bars and
restaurants to remain open till 5:00 am on New Year's Eve, and this has
now been permitted by the State Government as well. But this
demands, in turn, greater and not lesser responsibility on the part of
citizens. Further, in the major metros at any rate there are now several
viable alternatives in the form of not only public transport but also
drivers whose services can be hired for the purpose. We note, too, that
in at least one incident, there were some police officers who lost their
lives.
19. We find nothing to suggest that some quantity of alcohol in
the blood can be considered 'safe'; at the highest, a specified quantity is
a generalized norm, one that does not allow for the very wide variations
that may result from one person to the next. There is, in fact, no reason
why any person who has had any amount to drink should be permitted
to drive at all. Given the alternatives available, and having regard to
the manifest risks especially to third parties, we would strenuously urge
the adoption by the Central Government of a zerotolerance policy
toward drunk driving. We see no reason why the police should be
burdened with having to prove whether or not a person is above or
below any particular limit; the mere presence of alcohol in the blood
should, in our view, be sufficient to disentitle a person from driving. In
itself, this would facilitate the work of the police and go a long way to
ensuring safety on our roads, apart from lessening the forensic burden
on enforcement agencies.
20. Section 185 is placed in Chapter 13 of the M.V. Act. This
Chapter does not contain any provision by which the State Government
can make appropriate rules. We would urge the Central Government to
consider a suitable amendment in this regard, either by allowing
various State Governments to prescribe their own norms (and we would
urge the Maharashtra Government to adopt a zero tolerance norm), or
to prescribe such a zerotolerance norm in Section 185 itself. The time
has now come for just such a measure. Too many lives have already
been lost to this lethal cocktail of internal consumption and internal
combustion.
21. Detailed directions will be issued after considering the
response of both the State and the Central Government. For the time
being, we issue the following interim directions :
(a) The State Government shall file an affidavit setting
out whether adequate number of devices for
conducting breath test as approved by the Central
Government are available in Mumbai as well as in
other Municipal Corporation Areas. The affidavit to
contain the data of the devices provided to the Police
as well as to the authorised Officers of the Motor
transport Department which are in working
condition today. The affidavit shall also set out the
details of the arrangements made for the regular
maintenance and checking of the devices used for
conducting the breath test ;
(b) The State shall furnish the data of the cases
registered under Section 185 of the M.V.Act in
Mumbai and other Municipal Corporation areas
during last three years (2013,2014 and 2015) with
special reference to the cases registered on 31st
December and 1st January every year. The State
Government shall also provide details of the action
of suspension of driving licences taken in such cases
during the aforesaid period of three years in
Mumbai and other Municipal Corporation areas;
(c) The State Government as well as the Central
Government shall file an affidavit stating whether
they intend to frame Rules and/Regulations and/or
guidelines for the conduct of breath test, for
collection of blood samples and for taking further
steps for analysis of the blood samples;
(d) The State Government shall also state whether it
intends to set up Forensic Laboratories at every
Government hospital including the
District/Civil/Cottage hospitals as well as selected
Primary Health Centres near major State and
National Highways for testing of blood samples in
the cases under Section 185 of the M.V.Act. The
State Government shall also state whether it intends
to provide mobile Forensic Laboratories;
(e) The State Government shall issue appropriate
directions to ensure that an action is initiated by the
Licencing Authorities in the State of the suspension
of the driving licenses immediately on the
registration of cases under clause (a) of Section 185
of the M.V.Act. The State Government shall also
issue appropriate directions to establish a proper
coordination between the Police and the Licencing
Authorities to ensure that action is immediately
initiated of suspension of licences in the aforesaid
cases;
(f) We direct the State and Central Government to file
comprehensive affidavits in terms of the above
directions within a period of three weeks from today
so that the appropriate guidelines can be issued by
this Court;
(g) We direct the State and the Central Government to
file affidavits dealing with the observations made by
this Court in paragraphs 17 to 20 above. For filing
affidavits dealing with the said observations, we
grant longer time of six weeks to both the State and
the Central Government;
(h) Place the Petition under the caption of “Directions”
on 9th February 2016 reporting compliance and for
issuing further directions;
( G.S. PATEL, J ) ( A.S. OKA, J )
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