Safiya Malik

The High Court of Kerala at Ernakulam has quashed criminal proceedings against a petitioner accused of driving under the influence, after finding that the prosecution failed to produce the original breathalyzer test report as mandated under law. The judgement was issued by Single Bench of Justice V.G. Arun, who recorded that the breathalyzer evidence submitted in the case consisted only of a typewritten document prepared by the police and therefore held no evidentiary value under the statutory provisions. The Court observed that “no evidentiary value can be attached to the typewritten report” and “results of the breathalyzer test made admissible by Section 203(6) can only be for the original print taken from the equipment immediately after the test.”

The petitioner, aged 41 years and a resident of Kannur district, was named as the accused in Crime No. 48 of 2019 registered at the Payangadi Police Station. The allegations pertained to offences punishable under Section 279 of the Indian Penal Code and Section 185 of the Motor Vehicles Act, now pending as STC No. 291 of 2019 before the Judicial First Class Magistrate Court, Payyannur.

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According to the prosecution, at approximately 22:10 hours on 21.01.2019, the petitioner was found driving his motorcycle dangerously after consuming alcohol. The incident led to the registration of the crime and subsequent prosecution under the aforementioned provisions. The charge of driving under the influence was primarily based on the outcome of a breathalyzer test allegedly conducted at the scene.

The petitioner challenged the proceedings under Section 482 of the Code of Criminal Procedure, filing Criminal Miscellaneous Case No. 709 of 2021 before the High Court. The petitioner’s counsel submitted that the report of the breathalyzer test, which was the only evidence available to substantiate the charge under Section 185 of the Motor Vehicles Act, was merely a typewritten document produced by the police and did not comply with the statutory requirement of a contemporaneous printed report from the breathalyzer equipment.

The petitioner contended that under Section 202 of the Motor Vehicles Act, a person arrested for an offence under Section 185 must be subjected to medical examination by a registered medical practitioner within two hours of arrest. The counsel submitted that while Section 203 empowers a police officer to require a person suspected of driving under the influence to undergo a breath test, the admissibility of the test result is conditional on the production of the printed output from the device taken at the time of the test.

It was further submitted that Circular No. 44 of 2009 issued by the Director General of Police specifically requires that a printed copy of the breathalyzer result be produced along with the charge sheet. The petitioner argued that the absence of this document invalidated the prosecution’s case, as the typewritten document lacked statutory compliance and evidentiary value.

Upon receiving the petitioner’s arguments, the Court directed the learned Public Prosecutor to ascertain whether the original printout of the breathalyzer result had been produced along with the final report. In response, the Public Prosecutor submitted that, as per instructions received, the typewritten copy produced in the Criminal Miscellaneous Case was the report that had been filed along with the charge sheet.

Justice V.G. Arun examined the contentions raised by both parties in light of the applicable statutory provisions and the documentary evidence on record. The Court recited the relevant legal requirements by noting that “it is mandatory to subject a person arrested in connection with the offence under Section 185 of the Motor Vehicles Act to medical test by a registered medical practitioner within two hours of his arrest.”

The Court further observed that Section 203 of the Motor Vehicles Act empowers a police officer or an officer of the Motor Vehicles Department to require any person driving or attempting to drive a motor vehicle in a public place to provide specimens of breath for a breath test if there is reasonable cause to suspect that the person has committed an offence under Section 185.

Quoting directly from the judgment, the Court stated, “As per Sub-Section (6) of Section 203, the results of a breathalyzer test is admissible in evidence. But for that, the test should be conducted immediately, and if the accused refuses to undergo the test, after his arrest, within two hours, and the print out received from the equipment produced in court along with the charge sheet.”

The Court referred to the Circular No. 44 of 2009 issued by the Director General of Police and recorded that the prosecution requires no further clarification on the procedure to be followed for breathalyzer tests. The Circular directs that the test must be properly conducted, and a printed result obtained and produced along with the charge sheet to sustain the charge.

On perusing the records, Justice V.G. Arun noted that in the present case, the required printout of the breathalyzer test was not produced. The Court observed that “the print out of the test is not produced. Instead, a typewritten copy prepared by the police is submitted along with the final report.” The Court accepted the petitioner’s contention that the typewritten document lacked evidentiary value, finding that “the results of the breathalyzer test made admissible by Section 203(6) can only be for the original print taken from the equipment immediately after the test.”

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The Court did not go into the merits of other allegations under Section 279 of the Indian Penal Code but confined the decision to the defect in the evidentiary procedure regarding the Section 185 charge.

Having found the evidentiary basis of the charge under Section 185 deficient, the Court concluded the proceedings by stating, “In the result, the Crl.M.C is allowed. All further proceedings in STC No.291 of 2019 on the files of the Judicial First Class Magistrate Court, Payyannur, as against the petitioner, is quashed.”

Advocates Representing the Parties

For the Petitioner: T.V. Jayakumar Namboodiri, Advocate

For the Respondents: M.C. Ashi, Public Prosecutor

Case Title: Dhanesh M. vs. State of Kerala & Anr.
Neutral Citation: 2025:KER:13915
Case Number: CRL.MC No. 709 of 2021
Bench: Justice V.G. Arun

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