Sunday 19 January 2014

Police can arrest Drunk driver to conduct Breath Test



 In   any   event,   the 
offence cannot be said to be cognizable only because a power is conferred 
to   arrest   any   person   committing   such   offence,   without   warrant.   It   is 
apparent that a person arrested in connection with an offence punishable 
under   Section   185   of   the   MV   Act   has   to   be   subjected   to   a   medical 
examination referred to in Sections 203 and 204 by a registered medical 
practitioner.   The   Breath   Test   has   to   be   carried   out   so   as   to   ascertain 
whether there was presence of alcohol in his body or a person was under 
the influence of a drug. Therefore, this is not an absolute power to arrest 
without warrant, but subject to the conditions specified in law and there 
are inbuilt safeguards and protection so that a person is not deprived of 
his life and liberty. In these circumstances merely because the power to 
arrest without warrant is conferred in a police officer in uniform does not 
mean that the offence is cognizable. Even if a person is to be subjected to 
the tests, the Police Officer must have a reasonable cause to suspect him 
of having committed an offence punishable under Section 185. Therefore, 

if there is a reasonable cause to suspect a person having committed an 
offence   punishable   under   Section   185,   that   he   can   be   subjected   to   a 
Breath Test and by calling upon him or requiring him subject himself to 
such test, is not necessarily arrest. He could be arrested provided a Breath 
Test carried out on him indicating presence of alcohol in his blood. He 
cannot be arrested if he is at a hospital as an indoor patient. If the person 
concerned refuses to provide a specimen of breath for a Breath   Test or 
fails to do so and a police officer has a reasonable cause to suspect him of  
having alcohol in his blood that he may arrest that person except while 

that person is in hospital as an indoor patient. Even after his arrest he 
shall   while   at   police   station   be   given   an   opportunity   to   provide   a 
specimen of breath for a Breath Test. Therefore, with all this it is not as if  
the offence can be said to be cognizable. Additionally also because of the 
extent of punishment, namely, imprisonment for less than two years that 
a   conclusion   can   safely   be   reached   that   an   offence   punishable   under 
Section 185 of the MV Act is not cognizable.

CRIMINAL APPELLATE JURISDICTION
         CRIMINAL APPLICATION NO.467 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ms.Rani Shashank Doshi,

    ­Versus­ 
 State of Maharashtra.
     
CORAM :  S.C.DHARMADHIKARI
&
G.S.PATEL, JJ.

Pronounced on : 28th November, 2013.




In this Criminal Application the only point that arises for our 
consideration is whether an offence punishable under Section 185 of the 
Motor Vehicles Act, 1988 is cognizable or non­cognizable.
2
The facts that are necessary to appreciate this question are 

that on 27.04.2011 the Applicant was driving a motor vehicle when she 
was signalled to stop by an officer of the N.M.Joshi Marg Police Station, 
Mumbai.   The   Applicant   was   further   put   to   a   “Breath   Alcohol   Analysis 
Test” and after the test was conducted, no statement was recorded nor 
was any report given to the Applicant. The Applicant was further directed 
to deposit a sum of Rs.2000/­ for which the Applicant was furnished a 
receipt. The Applicant was further directed to attend the Court of Special 
Metropolitan   Magistrate   (Morning   Court),   Bhoiwada,   Mumbai   on 
03.05.2011.   Thereafter,   the   Applicant   was   allowed   to   go   as   per   the 
It   is   stated   that   on   03.05.2011   the   Applicant   attended   the 


directions of the officers of Respondent No.3.
Court of Special Metropolitan Magistrate, Dadar, Mumbai where number 
of   persons  were   present.  The  Applicant's  name   was  called   out,  but   no 
documents   were   furnished   to   the   Applicant.   The   Applicant   was   asked 
whether she pleaded guilty to the charge under Section 185 of the Motor 
Vehicles Act, 1988. The Applicant pleaded not guilty and thereafter the 
Applicant was directed to attend the Court of Metropolitan Magistrate, 
29th Court, Dadar Mumbai. A copy of charge sheet filed by the officers of 
Respondent   No.3   dated   03.05.2011   is   annexed   as   Annexure­A   to   the 
Criminal Application. 

Mr.H.K.Prem,   learned   counsel   appearing   for   the   Applicant, 
has submitted that an offence punishable under Section 185 of the Motor 
Vehicles Act, 1988 (for short “the MV Act”) is a cognizable offence. This 
would be evident from the scheme of the MV Act vis­a­vis the Code of 
Criminal   Procedure,   1973.   Mr.Prem,   inviting   our   attention   to   the 
definitions   of   the   terms   “cognizable   offence”   and   “cognizable   case”   as 

appearing in Section 2(c) of the Code of Criminal Procedure, 1973, has 
submitted that by its very definition, an offence would be a cognizable 
offence   if   a   police   officer   is   empowered   to   arrest   without   warrant   in 
accordance with the First Schedule of the Code of Criminal Procedure, 
1973   or   under   any   other   law   for   the   time   being   in   force.   The   First 
Schedule comprises of two parts. Part­I tabulates the offences under the 
Indian Penal Code whereas Part­II provides for classification of offences 
falling in other laws or statutes. In other words, if a statute other than the 
Indian Penal Code does not categorically classify an offence as cognizable 

or non cognizable and further does not provide any mechanism to the 
police to arrest without warrant, Part­II of the First Schedule classifies the 
offences as cognizable or non cognizable on the basis of the punishment 
prescribed for the said offence. Thus, an offence other than provided in 
the   Indian   Penal   Code   would   be   cognizable   if   either   the   said   statute 
expressly provides the said offence to be cognizable or empowers a police 
officer to arrest without warrant. In the alternative the same would be 
cognizable or non cognizable depending on the punishment prescribed in 
reference   to   Part­II   of   the   First   Schedule   of   the   Code   of   Criminal 
Procedure, 1973. 

Mr.Prem submitted that Section 41 of the Code of Criminal 
Procedure, 1973 provides for as to when the police could arrest without 
warrant. A closer look of Section 41 would demonstrate that the police 
are empowered to arrest without warrant essentially in connection with 
the commission of a cognizable offence. As such, Section 2(c) and Section 
41 of the Code of Criminal Procedure, 1973 complement each other in 
laying down the mandate of law that an offence is cognizable where the 
police can arrest without warrant and vice versa. The conjoint reading of 

Sections   2(c)   and   41,   therefore,   clearly   demonstrates   that   the   law 
mandates   an   offence   to   be   cognizable   if   the   police   are   empowered   to 

arrest without  warrant. 
Mr.Prem   submitted   that  in   view   of   the  above   position,   the 
provisions of the MV Act especially Sections 202 and 203 thereof require a 
closer look. Howsoever, similar or dissimilar Sections 202 and 203 may 
appear,   the   Legislature   has   incorporated   them   by   segregating   them 
distinctively and in different spheres. The Legislature by virtue of Section 

202  has expressly  empowered  the  police   to arrest  without  warrant  for 
offences punishable under, inter alia, Section 185. However, at the same 
time, the Legislature, in its own wisdom, has qualified the provision of 
arrest without warrant by restricting the said power to a police officer in 
uniform. Thus, though  a police officer  is empowered  to arrest without 
warrant for the commission of offences of, inter alia, Section 185 of the 
MV Act, at the same time the said arrest can be effected only by a police 
officer   in   uniform.   It   is   submitted   that   merely   by   virtue   of   this 
qualification that is embargoed on the police, the same would not change 
the complexion of the offence from a cognizable to a non­cognizable one.

Mr.Prem submitted that it would be also imperative to note 
the   distinction   between   Section   202   and   203   for   the   purposes   of   the 
present challenge. Section 202(1) empowers the police officer in uniform 
to arrest without warrant, any person “who in his presence” commits an 
offence. That would mean for the purposes of the present challenge, that 
for a police officer in uniform to arrest a person under Section 202, an 
offence has to be committed in the presence of the said Police Officer. As 
and   by   way   of   illustration,   if   a   person   whilst   driving   a   motor   vehicle, 

consumes alcohol, and the said act of driving and consumption of alcohol 
is committed in the presence and/or in the sight of the Police Officer, the 
said   Police   Officer   is   empowered   to   arrest   the   said   person   under   the 
provisions of Section 202 of the MV Act. The proviso thereafter provides 
for such a person arrested to be subjected to a medical examination as 
contemplated   under   Sections   203   and   204   of   the   MV   Act   within   two 
hours of his arrest. 
Mr.Prem   submitted   that   on   the   other   hand,   Section   203   is 


distinctively different from Section 202 for the purposes of the present 
challenge. Here again, the Legislature in its wisdom has qualified a Police 
Officer to be a Police Officer in uniform or an officer of the Motor Vehicle 
Department for the purposes of obtaining specimens of breath for Breath 
test. However, at the same time, the arrest which is contemplated under 
Section 203 is only by a Police Officer in uniform without empowering the 
officer   of   the   Motor   Vehicle   Department   therefor.   Sub­clause   (3)   of 
Section 203 provides for a police officer in uniform to arrest a person if 
the   said   person   in   consequence   of   the   breath   test   carried   out   on   him 
shows the presence of alcohol in his blood. Thus, Mr.Prem submitted that 
on one hand, Section 202 provides for the immediate arrest of an offender 
whereas   Section   203   provides   for   the   arrest   of   an   offender   after   the 
breath   test   which   is   carried   out   on   the   said   person.   The   distinction   is 
essentially with respect to the commission of an offence under Section 
185 in the presence of the police officer as contemplated by Section 202 
of   the   MV   Act   whereas   on   the   other   hand,   Section   203   provide   for 
subjecting an offender to a breath test on a reasonable suspicion of the 
offender having committed an offence and thereafter, arresting the said 
offender. In both the cases, offenders are arrested without warrant by a 

Mr.Prem submitted that an analogous reading of Sections 202 

police officer albeit in uniform.
and   203   of   the   MV   Act   vis­a­vis   Section   41   of   the   Code   of   Criminal 
Procedure, 1973 would clearly show that the offence under Section 185 is 
intended by the Legislature to be cognizable. The arrest without warrant 
by the police officer under Section 202 of the MV Act would be analogous 
to the arrest by a police officer under Section 41(1)(a) of the Code of 
Criminal Procedure, 1973. Both the provisions contemplate the arrest of 

an   offender   who   commits   in   presence   of   a   Police   Officer   a   cognizable 
offence. On the other hand, Section 203 of the MV Act is analogous with 
Section 41(1)(b)(ii)(b) of the Code of Criminal Procedure, 1973. Both the 
provisions   contemplate   the   arrest   of   a   person   without   warrant   by   the 
Police Officer who is satisfied that such an arrest is necessary for proper 
investigation of the offence.

Mr.Prem,   thus,   submitted   that   Section   185   is   a   cognizable 
offence as it provides for a Police Officer in uniform to arrest an offender 
without warrant. If such a provision stands enacted by the Legislature, it 
would be an error to fall back on Part­II of the First Schedule to the Code 
of Criminal Procedure, 1973 for the determination of the classification of 
Section 185 of the MV Act as cognizable or non ­cognizable.

Mr.Prem submitted that if an offence is a cognizable offence, 
the   Police   Officer   would   be   under   a   mandate   to   register   a   First 
Information   Report   under   Section   154(1)   of   the   Code   of   Criminal 
Procedure, 1973 for the purposes of investigating the same. After having 
registered such an offence under Section 154(1) of the Code of Criminal 

Procedure, 1973, the officer in charge of the Police Station under Section 
156(1) of the Code of Criminal Procedure, 1973 has a statutory right to 
investigate   the   said   cognizable   case   without   requiring   a   sanction   of   a 
Magistrate. However, this statutory right under Section 156(1) is subject 
to the fulfillment of a pre­requisite condition contemplated under Section 
157(1) of the Code of Criminal Procedure, 1973. The condition is that the 
officer in charge of a Police Station before proceeding to investigate the 
facts and circumstance of the case should have “reason to suspect” the 
commission of an offence which he is empowered under Section 156 of 

the Code of Criminal Procedure, 1973 to investigate. It is settled law as 
decided by the Honourable Supreme Court in the matter of Bhajanlal v/s  
State   of   Haryana  reported   in  AIR   1992   SC   604  that   the   condition 
precedent to the commencement of an investigation under Section 157(1) 
of the Code of Criminal Procedure, 1973 is the existence of the reason to 
suspect the commission of a cognizable offence which has to be prima 
facie   disclosed   by   the   allegations   made   in   the   First   Information   lead 
before the police officer under Section 154(1) of the Code of Criminal 
Procedure,   1973.   In   other   words,   if   an   offence   is   cognizable,   the 
investigation thereof can proceed only after the registration of an FIR as 
contemplated   under   Section   154   of   the   Code   of   Criminal   Procedure, 
1973.   Without   such   registration   of   an   FIR,   no   investigation   can   be 
commenced for cognizable offences.
12
Mr.Prem   submitted   that   in   the   present   case   though   the 
offences   under   Section   185   of   the   MV   Act   are   cognizable,   no   FIR   as 
mandated under Section 154 of the  Code of Criminal Procedure, 1973 
was   registered   nor   any   investigation   as   contemplated   by   Section   156 
undertaken   nor   a   report   as   mandated   under   Section   157   sent   to   the 

Magistrate. The proceedings are, therefore, abjectly illegal and deserve to 
13
be quashed and set aside.
 Mr.Prem submitted that if the offence under Section 185 was 
to   be   non­cognizable,   then   in   that   case,   the   police   would   not   be 
empowered   to   arrest   without   warrant.   A   harmonious   reading   of   the 
provisions of the MV Act and more particularly Sections 202 and 203 vis­
a­vis Section 2(c) and 41 of the Code of Criminal Procedure, 1973 would 
make it abundantly clear that an offence under Section 185 is cognizable. 

To contend that the offence is a non­cognizable offence and at the same 
time empowering the police to arrest an offender without warrant would 
be in the teeth of Section 2(c) of the Code of Criminal Procedure, 1973 
and the said provisions would be rendered ultra vires.
Lastly, Mr.Prem submitted that be that as it may, assuming for 
14
the sake of argument the offence to be non­cognizable (notwithstanding 
the   power  to  arrest  without  warrant)  the  Code  of  Criminal  Procedure, 
1973   provides   a   mechanism   for   investigating   the   same.   Section   155 
requires an officer in charge of the Police Station to refer the said offence 
to the Magistrate and is estopped by virtue of Section 155(2) of the Code 
of   Criminal   Procedure,   1973   from   investigating   a   non­cognizable   case 
without an order of the Magistrate. In the present case, no such procedure 
has admittedly been  followed and as such the present proceedings are 
rendered abjectly illegal and deserve to be quashed forthwith.

Mr.Prem submitted that the charge sheet which is filed by the 
police   in   the   present   case   before   the   Magistrate   is   abjectly   illegal 
inasmuch as the Code of Criminal Procedure, 1973 does not contemplate 

such a proceeding in any manner at all. Either the police ought to register 
an FIR, investigate the FIR under the provisions of Sections 156, 157, etc. 
of   the   Code   of   Criminal   Procedure,   1973   and   file   a   police   report   as 
contemplated   by   Section   173   by   complying   with   the   provisions   of   the 
Code   of   Criminal   Procedure,   1973   or   if   the   police   investigate   a   non­
cognizable case under Section 155(2), the police have to file a complaint 
before the learned Magistrate which would be treated in the nature of 
Section 2(d) for which a cognizance would be taken under Section 190(1)


(a) of the Code of Criminal Procedure, 1973.
On the other hand, Mrs.Kejriwal, learned APP appearing on 
behalf   of   the   Respondents/State,   submitted   that   the   controversy   as   to 
whether an offence is cognizable or non­cognizable has been decided by 
the learned Single Judge of this Court in the case of Sandeep Indravadan  
Sagar v/s State of Maharashtra in Criminal Writ Petition No.1849/2010 
along with connected Criminal Writ Petitions and Applications decided on 
10.01.2013. This particular Application was also on Board, but could not 
be taken up. Therefore, a different view is not permissible. In any event, 
the argument raised that the learned Single Judge's judgment is erroneous 
and incorrect and is, therefore, required to be overruled, should not be 
accepted.

Mrs.Kejriwal   submits   that   in   the   present   case   on   her   own 
showing the Applicant was driving the motor vehicle under the influence 
of alcohol. If that was the offence, then, the Applicant was stopped by the 
officer concerned and subjected to a Breath Test for detecting presence of 
alcohol in her blood. The Applicant submitted to all this voluntarily. There 
was no question of any arrest. The Applicant was then directed to attend 

the Court of Special Metropolitan Magistrate (Morning Court), Bhoiwada 
on   03.05.2011.   She   attended   the   Court   and   was   asked   whether   she 
pleaded guilty to a charge under Section 185 of the MV Act. She pleaded 
not guilty. Therefore, she was directed to attend the Court of Metropolitan 
Magistrate, 29th  Court, Dadar on 03.05.2011 and a copy of the charge 
sheet   has   been   annexed   as   Annexure­A   to   this   Criminal   Application. 
Mrs.Kejriwal submits that the view taken by the learned Single Judge is 
the only view in the given facts and circumstances. There is no question of 
any arrest being effected and therefore, the provisions with regard to a 

power   of   arrest   without   warrant   need   not   be   adverted   to.   When   an 
offence is non­cognizable, the view taken by the learned Single Judge is 
correct. It does not require any reconsideration. The Criminal Application 
be, therefore, dismissed.
For  properly appreciating the  rival contentions, a reference 

will have to be made to the Motor Vehicles Act, 1988. This is an Act to 
consolidate and amend the law relating to Motor Vehicles. The Old Act 
1939 came to be amended in 1988. It was further amended in 1994. The 
statement of objects and reasons for the Amendment Act 54 of 1994 reads 
thus:­
“Amendment Act 54 of 1994 ­ 
Statement of Objects and Reasons. ­ 
2. 
The   Motor   Vehicles   Act,   1988   (59   of   1988)  
consolidated and rationalised various laws regulating  
road  transport.  The  Act  came  into  force  with   effect  
from 1st July, 1989 replacing the Motor Vehicles Act,  
1939.
After the coming into force of the Motor Vehicles Act,  
1988,   Government   received   a   number   of  
representations   and   suggestions   from   the   State  
Governments,   transport   operators   and   members   of  

public   regarding   the   inconvenience   faced   by   them  
because of the operation of some of the provisions of  
the   1988   Act.   A   Review   Committee   was,   therefore,  
constituted   by   the   Government   in   March,   1990   to  
examine and review the 1988 Act.
The recommendations of the Review Committee were  
forwarded   to   the   State   Governments   for   comments  
and   they   generally   agree   with   these  
recommendations. The Government also considered a  
large   number   of   representations   received,   after  
finalisation of the Report of the Review  Committee,  
from the transport operators and public for making  
amendments   in   the   Act.   The   draft   of   the   proposals  
based   on   the   recommendation   of   the   Review  
Committee and representations from the public were  
placed before the Transport Development Council for  
seeking   their   views   in   the   matter.   The   important  
suggestions   made   by   the   Transport   Development  
Council relate to, or are on account of,– 
(a)  the introduction of newer type of vehicles and  
fast   increasing   number   of   both   commercial   and  
personal vehicles in the country;
(b)  providing adequate compensation to victims of  
road   accidents   without   going   into   longdrawn  
procedure;
(c)  protecting   consumers’   interest   in   Transport  
Sector;
(d)  concern for road safety standards, transport of  
hazardous chemicals and pollution control;
(e)  delegation of greater powers to State Transport  
Authorities   and   rationalising   the   role   of   public  
authorities in certain matters;
(f)  the   simplification   of   procedures   and   policy  
liberalisation in the field of Road Transport;
(g)  enhancing penalties for traffic offenders.

3. 

Therefore, the proposed legislation has been prepared  
in the light of the above background. The Bill  inter 
alia provides for –
(a)  modification   and   amplification   of   certain  
definitions of new type of vehicles;
(b)  simplification of procedure for grant of driving  

licences;
(c)  putting   restrictions   on   the   alteration   of  
vehicles;
(d)  certain exemptions for vehicles running on non­
polluting fuels;
(e)  ceilings   on   individuals   or   company   holdings  
removed to curb “benami” holdings;
(f)  States authorised to appoint one or more State  
Transport Appellate Tribunals;
(g)  punitive checks on the use of such components  
that do not conform to the prescribed standards by  
manufactures, and also stocking / sale by the traders;
(h)  increase in the amount of compensation of the  
victims of hit and run cases;
(i)  removal of time limit for filing of application  
by road accident victims for compensation;
(j)  punishment in case of certain offences is made  
stringent;
(k)  a new pre­determined formula for payment of  
compensation to road accident victims on the basis of  
age / income, which is more liberal and rational.

The   Law   Commission   in   its   119th  Report   had  
recommended   that   every   application  for  a   claim  be  
made to the Claims Tribunal having jurisdiction over  
the   area   in   which   the   accident   occurred   or   to   the  
Claims   Tribunal   within   the   local   limits   of   whose  
jurisdiction the claimant resides or carries on business  
or   within   the   local   limits   of   whose   jurisdiction   the  
defendant resides, at the option of the claimant. The  
Bill  also makes necessary provision to give effect  to  
the said recommendation.”
5. 

Thus, the amendment envisages stringent punishment in case 
of certain offences.
20
We are, in this case, concerned with the provisions which are 
contained in Chapter­XIII of the MV Act entitled “offences, penalties and 

procedure”.  Section   177  with  which  this  Chapter   opens  makes  general 
provisions for punishment of offences. Section 178 provides for penalty 
for travelling without pass or ticket and for dereliction of duty on the part 
of conductor and refusal to ply contract carriage, etc.. Section 179 makes 
disobedience   of   orders,   obstruction   and   refusal   to   give   information   an 
offence.   Allowing   unauthorized   persons   to   drive   vehicles   is   an   offence 
punishable   under   Section   180.   Driving   vehicles   in   contravention   of 
Section 3 or Section 4 is also made punishable with imprisonment for a 
term which may extend to three months or with fine or with both and 

that   is   by   Section   181.   Section   182   deals   with   offences   relating   to 
licences. Section 182­A provides for punishment for offences relating to 
construction and maintenance of vehicles. Section 183 makes driving at 
excessive speed an offence. Section 184 makes driving dangerously also 
an offence.
21
Then,   comes Section 185 and which has substituted clause 
(1). This substitution is by Act 54 of 1994. Section 185 reads thus:­
“185.  Driving by a drunken person or by a person under the  
influence of drugs. – 
[(a) 
(b) 
Whoever,   while   driving,   or   attempting   to   drive,   a  
motor vehicle, – 
has, in his blood, alcohol exceeding 30 mg. per 100  
ml. of blood detected in a test by a breath analyser,  
or]
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  
year, 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.”
There are then several provisions enabling dealing with cases 


of   driving   vehicles   when   a   person   is   mentally   or   physically   unfit   and 
punishment   for   offences   relating   to   accidents   and   punishment   for 
abatement of certain offences.

We are not concerned with other offences. Sections 202 and 
203 of the MV Act read as under:­
“202.  Power to arrest without warrant. – 
(1) 
A   police   officer   in   uniform   may   arrest   without  
warrant any person who in his presence commits an  
offence punishable under section 184 or section 185  
or section 197:
Provided   that   any   person   so   arrested   in   connection  
with an offence punishable under section 185 shall,  
within   two   hours   of   his   arrest,   be   subjected   to   a  
medical examination referred to in sections 203 and  
204 by a registered medical practitioner failing which  
he shall be released from custody.
(2)  A   police   officer   in   uniform   may   arrest   without  
             warrant any person, who has committed an offence  
                    under this Act, if such person refuses to give his name  
                              and address.
(3)  A police officer arresting without warrant the driver  
             of a motor vehicle shall if the circumstances so require  
                      take or cause to be taken any steps he may consider  

Breath tests. – 
A police officer in uniform or an officer of the Motor  
Vehicle   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:
203. 
(1) 
proper for the temporary disposal of the vehicle.”
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 :
(2) 

Provided   that   requirement   for   breath   test   shall   be  
made   (unless   it   is   made)   as   soon   as   reasonably  
practicable after the commission of such offence.
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.

(4)  If   a  person,   required  by  a   police   officer  under   sub­
               section (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.
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.

(3)  
24
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.”
A   perusal   of   these   provisions   in   the   backdrop   of   the 
Statement of Objects and Reasons would enable us to hold that Section 
185 makes it an offence if a motor vehicle is driven by a person under the 
influence of alcohol or by a person under the influence of drugs. What is 
further material is the fact that the offence is committed while driving or 
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attempting to drive a motor vehicle. Therefore, the offence is of driving or 
attempting   to   drive   a   motor   vehicle   in   a   drunken   state   or   under   the 
influence of drugs.
25
The menace of drunken driving has been considered by the 
Honourable   Supreme   Court   in   the   case   of   the  State   through   PS   Lodhi  
Colony, New Delhi v/s Sanjeev Nanda  reported in  AIR 2012 SC 3104 : 
(2012) 8 SCC 450. The Honourable Supreme Court has observed thus:­
......... This court  in  Kurban  Hussain  Mohamedalli  
Rangawalla v.  State of Maharashtra [AIR  1965  SC  
1616] approved the plea that simply because of the  
fact that no untoward  incident had taken place prior  
to the occurrence of the accident,  one  cannot  infer  
that the accused was sober and not in   a   drunken  
state. In   the   instant case, the presence of alcohol  
content   was   much   more   (i.e.   0.115%)   than   the  
permissible   limit   and   that   the   accused   was   in   an  
inebriated  state  at  the time of accident due to the  
influence of liquor and  in  the  accident,  six human  
lives were lost.
ig
85.
86.
Drunken driving has become a menace to our society.  
Every day   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.
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Punishment meted out to a drunken driver, is at least  
a deterrent  for other such persons getting away  with  
minor   punishment   and   fine.     Such incidents are  
bound to increase  with  no  safety   for  pedestrians  
on  the roads. The contention raised by learned senior  
counsel     that     the     accused   was   not   under   the  
influence   of   liquor   or   beyond   the   limit     prescribed  
under the Motor Vehicles Act and he was in his senses  
and the victims were  at  fault  being on the middle of  
the  road,  is  without  any  substance  and  only  to  
be rejected.”
The  question  before  us  is  because  Section   202  confers the 
ig
26
87.
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power in a police officer in uniform to arrest any person without warrant, 
whether   the   offence   is   of   the   nature   urged   before   us.   That   power   is 
conferred if the offence punishable under Section 184 or 185 or 197 is 
committed in the presence of a police officer in uniform. Section 197 is an 
offence   of   taking   vehicle   without   authority   whereas   Section   184   is   an 
offence   committed   because   of   dangerous   driving.   The   Legislature   has 
advisedly inserted this provision so as to enable a police officer in uniform 
to arrest any person who in his presence commits this offence. In case of 
an offence punishable under Section 185, however, a police officer has to 
be vigilant and within two hours of arrest of such person, he should be 
subjected to a medical examination referred to in Sections 203 and 204 
by a registered Medical  Practitioner, failing which he  shall  be  released 
from custody.
27
By sub­section (2) of Section 202, a police officer in uniform 
is   given   discretion   to   arrest   without   warrant   any   person   who   has 
committed an offence under the MV Act if such person refuses to give his 
name and address. The power is also conferred in a police officer by sub­
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section (3) of Section 202 to take or cause to be taken any steps for the 
temporary disposal of the  vehicle. This power is to be exercised if  the 
28
circumstances so require.
By Section 203(1) of the MV Act the power is given to both, a 
police officer in uniform or an officer of the Motor Vehicle Department as 
may   be   authorized   in   this   behalf   by   that   Department,   to   require   any 
person driving or attempting to drive a motor vehicle, to provide one or 
more specimens of breath for a Breath Test there or nearby if such police 
ig
officer   or   officer   has   any   reasonable   cause   to   suspect   him   of   having 
29
committed an offence punishable under Section 185.
By   sub­section   (2)   of   Section   203,   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 a person has alcohol in his blood 
or was driving under the influence of drugs, then, he may require such 
person to provide a specimen of his breath for a breath test.
30
By sub­section (3) of Section 203, a police officer in uniform, 
in consequence of a breath test carried out by him indicating presence of 
alcohol in blood, may arrest that person without warrant except if such 
person   is  admitted  in   a  hospital  as  an  indoor   patient.  In  view  of  sub­
section (4) of Section 203, refusal or failure to provide specimen of breath 
within the meaning of this provision would also result in a person being 
arrested.
31
Therefore, it is not as if by calling upon somebody to subject 
himself to a breath test on account of a reasonable cause and suspicion of 
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having committed an offence punishable under Section 185 that arrest is 
imminent or must follow. Therefore, the Legislature has authorized such 
specimens being collected not only by a police officer in uniform but an 
officer of the Motor Vehicle Department. Thereafter, it is only in certain 
circumstances and events that an arrest is permitted. Even Section 202 
has clarified that the power has to be exercised only when a police officer 
in uniform finds that the offence punishable under Sections 184 or 185 or 
197 is committed by a person in his presence. The arrest cannot continue 
unless   a   person   suspected   of   having   committed   an   offence   punishable 
32
Sections 203 and 204.
ig
under Section 185 is subjected to a medical examination referred to in 
To our mind, therefore, there is nothing in these provisions 
which would enable us to hold that a person suspected of driving in a 
drunken state or found to have been driving in such state or under the 
influence   of   drugs,   is   to   be   arrested   forthwith.   If   his   arrest   is   not 
immediate   or   imminent,   but   all   that   is   provided   is   to   subject   him   to 
certain tests, then it is difficult to conceive that the Legislature intended 
such offence to be cognizable. The Legislature was aware of the gravity 
and seriousness of such offence, and therefore, provided for punishment 
as enumerated therein.
33
The argument is that the  offence  is cognizable and that is 
evident by the fact that a police officer is empowered to arrest without 
warrant. It is contended that sub­section (1) of Section 202 empowers 
police officer in uniform to arrest without warrant any person who in his 
presence   commits   an   offence.   In   these   circumstances   the   further 
argument is that the definition of the term “cognizable offence and non­
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cognizable offence” as appearing in the Code of Criminal Procedure, 1973 
should   not   be   taken   assistance   of.   That   is   taken   assistance   of   by   the 
learned   Single   Judge,   and   therefore,   his   judgment   requires 
reconsideration.
34
Before   Honourable   Mr.   Justice   A.M.Thipsay,   the   Petitioner 
was arrested by the Charkop Division of Malwani Police Station on the 
allegation of having committed an offence punishable under Section 185 
of the MV Act. He was released on a cash bond of Rs.2000/­. As per the 
ig
terms   of   the   Bond,   he   appeared   before   the   Special   Metropolitan 
Magistrate,   Borivali.   On   that   date,   the   police   filed   the   charge   sheet 
against   him   and   the   learned   Single   Judge   was   concerned   with   the 
questions as to whether, the charge sheet can be filed without any First 
Information Report; can in a Summons Triable Case, the charge sheet be 
filed; and can in a trial an order of conviction and sentence be made in 
advance. It is in that context the question of offence being cognizable and 
non­cognizable arose for the learned Single Judge's consideration.
35
The learned Single Judge noted the contentions and held that 
the investigation in relation to the offence punishable under Section 185 
need not precede the registration of a First Information Report within the 
meaning of Section 154 of the Code of Criminal Procedure, 1973. That is 
not the requirement even when the investigations are commenced in a 
cognizable offence. In other words, the investigations into a cognizable 
offence need not be preceded by the registration of a First Information 
Report.
36
Our attention has been invited to several judgments and one 
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of which is reported in  AIR 1981 SC 368  (State of Gujarat v/s Lalsingh  
Kashansingh). The learned counsel for Applicant submitted that in this 
judgment the Honourable Supreme Court considered its earlier decisions 
and held as under:­
In Abasbhai's   case   (ibid),   a  Sub­Inspector   got   a  
warrant   issued   under   Section   6   of   the   Bombay  
Prevention of Gambling  Act, which authorised him to  
search  certain premises. In execution of  that warrant  
the  Sub­Inspector raided a  house and arrested three  
persons who were found therein. The case was tried  
by the Magistrate concerned as a cognizable one. At  
the trial at the stage of arguments, it was contended  
on behalf of the accused that offences under Sections  
4 and 5 were non­cognizable, and since the procedure  
of warrant case had  been followed by the Magistrate,  
the   trial   was   illegal.   The   trial   court   accepted   the  
argument and acquitted the accused. In appeal before  
the High  Court,  it  was agitated   that   the   offence  
was  a cognizable  one.  The  High  Court  reasoned  –  
and  we  think rightly – that  since  under S.6  of   the  
Act the Commissioner of Police   has   power   to   issue  
special warrants of search  and also  to  arrest,  he  is  
competent  to  do personally, what  he may  authorise  
others     to   do   by   special   warrant.   It     followed   the  
dictum of Deodhar Singh's case ((1899) ILR 27 Cal.  
144), in regard to the interpretation of the words "a  
police officer" in the definition of "cognizable offence"  
given   in   the   Code   of   Criminal   Procedure.   On   these  
premises, the High   Court held   that offences   under  
Sections 4  and 5 are cognizable.
ig
“18.
19. In Emperor  v. Ismail  (AIR 1930 Bom. 49) (ibid), a  
              Division Bench of the Bombay High Court, reaffirmed  
                     the dictum of Abasbhai's case (AIR 1926 Bom. 195),  
                             that an offence punishable under Section 4 of the Act,  
                                      is cognizable.
20. In Delhi  Administration v. Parkash Chand (AIR 1967  
            Delhi 151), H. R. Khanna, J.,  following the dictum of  
                      the  Calcutta   High   Court  in   Deodhar     Singh's     case  
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((1899 ILR 27 Cal 144),  and   of     Bombay     High  
Court   in Abasbhai's case,   held that   offences under  
Sections   3   and   4   of   Delhi   Gambling   Act   are  
'cognizable offences' as Section 5 of the Delhi Act gives  
the   Superintendent   of   Police   power   to   arrest   or  
authorise any  officer of  police, not  below the rank  
of Sub­Inspector, to arrest without a warrant.
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It is  argued on behalf of the appellant­State that the  
           ratio   of   the   aforesaid   decisions   in   Deodhar   Singh's  
                  case   and   Parkash   Chand's   case   is   not   applicable   to  
                          offences   under   the   Bombay   Prevention   of   Gambling  
                                Act,   because     the   Bengal   Act   and   the   Delhi   Act  
                                         expressly empower  the Superintendent of Police either  
                                                to   arrest   himself   or   direct   arrest   by   another   police  
                                                        officer of requisite rank; whereas in Section 6(1) of  
                                                                the Bombay  Prevention of  Gambling Act there are no  
                                                                          express words giving an option, to the  Commissioner  
                                                                                  of  Police to effect arrest, personally.
22. We are  unable to accept   this   argument.   The  
           difference   pointed   out,   is   a   distinction   without   a  
                  difference. What was explicit in  the Bengal Gambling  
                          Act and the Delhi Gambling Act, is implicit in Section  
                                   6(1) of the Bombay Prevention of Gambling Act.
ig
21. 
23.
It will  now be  appropriate  to  notice  this  Court's  
decision in  Union of India v. I. C. Lala (AIR 1973 SC  
2204).   In   that   case,   two   army   officers   and   one  
business­man   were     charged   with   the   conspiracy   of  
the   offences     punishable   under     Sections   120B   and  
420 of the Indian Penal Code, read with Section 5(2)  
of the  Prevention of  Corruption  Act. The officer who  
investigated these  offences was  an Inspector of   the  
Delhi   Police   Establishment.   Under   S.5­A   of   the  
Prevention of Corruption Act, before its amendment  
in   1974,   no   officer   below   the   rank   of   Deputy  
Superintendent of Police could investigate an offence  
punishable under Sections 161, 165 and 165A  of the  
Indian   Penal   Code   and   under   Section   5(2)   of   the  
Prevention of Corruption Act, without the order of the  
Presidency   Magistrate   or   a   Magistrate   of   the   First  
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ig
Class.   The   question   before   the   Court   was,   whether  
sanction   under   Section   196A   of   the   Code   was  
necessary. The answer to this question turned  upon 
whether   an   offence   under   Section   5(2)   of   the  
Prevention of  Corruption Act  was non­cognizable or  
cognizable.   The   High   Court   held   that   an   offence  
under   Section   5(2)   of   that   Act   was   non­cognizable  
because  it  was  not  an   offence  for   which   any   police  
officer   could   arrest   without   a   warrant.   The   same  
argument which was canvassed before the High Court  
was repeated before this Court. And it was contended  
that the words 'a  police officer'  in Section  4(1)(f) of  
the Code mean 'any' police officer. This argument  was  
repelled  by this Court  and it  was held that such an  
approach could not be  a criterion   for   deciding  
whether  the  offence  is cognizable or non cognizable.  
It was observed:
“If we  pursue the  same line of argument and  
look at the  definition of non­cognizable offence in S.  
4(1)(a)     which   defines   non­cognizable   offence     an  
offence for which a police officer, within or without a  
presidency town,  may not arrest without warrant, it  
might mean  that as  these are  cases  where  a  police  
officer of the rank of Dy. Superintendent and above  
can   arrest   without   warrant   these   are   not   non­
cognizable offences either.  How can  there  be  a  case  
which     is  neither   cognizable   nor  non   cognizable.  It  
was sought to be argued that these offences would be  
cognizable offences when they are  investigated by the  
Deputy Superintendents of Police and superior officers  
and   non   cognizable   when   they   are   investigated   by  
officers below the rank   of Deputy Superintendents.  
We fail to see how an offence would be cognizable in  
certain  circumstances and non­cognizable in certain  
other circumstances... We do not consider that this is  
a reasonable interpretation to place.””
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37
We are of the view that the question that was raised before 
the   Honourable   Supreme   Court   in   the   case   of   Lalsingh   Kashansingh 
(supra) was a distinct one. There, certain premises were raided because 
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of suspicion that gambling activities were going on therein. The persons 
were arrested and instruments of gaming were also seized. Further, the 
issue was that an application was made to the Police Inspector requesting 
him to enlarge them on bail. He did not consider their application nor did 
he pass any order. At about noon, the Respondents before the Supreme 
Court were produced before the Magistrate and he released them on bail. 
The said Police Inspector did not consider releasing them on bail because 
he was prohibited by the circular issued by the Superintendent of Police 
directing all Police Sub Inspectors not to release any person arrested in 
ig
connection   with   offences   punishable   under   Sections   4   and   5   of   the 
Bombay   Prevention   of   Gambling   Act,   1887   on   bail,   as   in   the   Form   of 
Warrant prescribed under Section 6 of the said Act it is mentioned that 
the arrested persons should be produced before the Magistrate. It is in 
these circumstances the circular was impugned by filing a Writ Petition 
under Article 226 of the Constitution of India before the High Court of 
Gujarath.   The   Honourable   Supreme   Court   while   dealing   with   the 
contentions with regard to the legality and validity of the circular made 
the said observations. These observations must be seen in the context of 
competence of the officers empowered to exercise the powers under the 
Bombay   Prevention   of   Gambling   Act,   1887.   It   was   not   as   much   a 
discussion   and   conclusion   on   the   offence   being   cognizable.   The 
Honourable   Supreme   Court   did   refer   to   definition   of   the   term 
“cognizable”, but it was in the context of the meaning of the term “police 
officer”   as   appearing   in   the   Code   of   Criminal   Procedure,   1898   and 
particularly   in   the   definition   of   the   term   “cognizable   offence”.   The 
Honourable Supreme Court was not considering any issue other than the 
legality   and   validity   of   the   circular.   This   would   be   evident   from   the 
discussion   in   paragraphs   reproduced   above.   This   judgment   is   not   an 
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The   learned   Single   Judge   of   this   Court   referred   to   the 
38
authority on the point.
definition of the term “cognizable offence” as appearing in the Code of 
Criminal   Procedure,   1973   and   proceeded   to   hold   that   merely   because 
Section 202 of the Motor Vehicles Act, 1988 in the present case empowers 
a police officer to arrest a person without warrant provided he commits 
an offence in his presence, will not make the offence punishable under 
Section   185   cognizable.   The   learned   Single   Judge   has   referred   to   the 
ig
scheme of the Motor Vehicles Act, 1988 and has found that the MV Act 
does not make offence cognizable. Therefore, one has to necessarily fall 
back on Part­II of the First Schedule to the Code of Criminal Procedure, 
1973. The learned Single Judge in paragraph 19 of his judgment rightly 
held that the power to arrest given to a police officer under Section 202 is 
not an unqualified power. That power can be exercised only if the offence 
is committed in  the  presence  of a  police  officer and when  such police 
officer is in uniform.
39
We need not go into larger question and issue raised by the 
learned counsel for Applicant because in the facts before us, it is conceded 
that the Applicant was driving the motor vehicle. She was signalled to 
stop by the officer of N.M. Joshi Marg Police Station. She was further put 
to   Breath   Test   and   after   the   test   was   conducted,   she   was   directed   to 
deposit a sum of Rs.2000/­ and receipt was furnished to her. She was 
directed to attend the Court of Special Metropolitan Magistrate (Morning 
Court), Bhoiwada. She attended the Court and it was asked whether she 
pleads guilty to the charge. She did not plead guilty, therefore, she was 
directed to attend the Court of Metropolitan Magistrate, 29 th Court, Dadar 
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and the copy of charge sheet filed was provided to her. The documents 
that are handed over to us as a compilation would indicate that at no 
point the Applicant was arrested as claimed by her. She accompanied the 
officer   voluntarily   and   subjected   herself   to   the   Breath   Test.   She   also 
collected the receipt for deposits and thereafter, attended the Court. She 
relies upon the true copy of charge sheet filed in the Court and therefore, 
it is urged that same would evidence her arrest and release on bail.
It   is   not   possible   to   accept   this   contention.   The   whole 
40
ig
criminal   application   and   contentions   raised   before   us   appear   to   be   an 
afterthought. The documents have been obtained and thereafter, contrary 
to the initial assertions, what is argued is that the Applicant was arrested. 
The additional grounds incorporated by way of amendment are based on 
these documents. However, we are of the opinion that in the facts of this 
case there was no arrest. The Applicant was apprehended while driving 
the vehicle. She was asked to accompany the officer who admittedly was 
a  police   officer   and   it   is   not   disputed   that   he   was  in   his   uniform.   He 
stopped the vehicle and thereafter, put the Applicant to the test. The test 
was   conducted   and   the   Applicant   was   directed   to   deposit   a   sum   of 
Rs.2000/­.   Thereafter,   she   went   away.   Now   the   contention   that   the 
amount   of   Rs.2000/­   was   Cash   Bail   Sum   and   thus,   the   Applicant   was 
arrested, is clearly an afterthought. The power to arrest without warrant 
conferred in a police officer in uniform is to take care of the acts specified 
in Sections 184, 185 and 197 of the MV Act. Each of these acts endanger 
safety   of   public.   It   is   common   ground   that   driving   a   motor   vehicle   at 
speed or in a manner which is dangerous to public, results in accident. 
Such accident may result in casualty. In such circumstances whenever a 
person is found to be driving dangerously or in a drunken state or under 
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the influence of drugs, that he can be proceeded in accordance with law. 
The offence is committed in the present case if any person while driving 
or   attempting   to   drive   the   motor   vehicle   has   in   his   blood   alcohol 
exceeding 30 mg. per 100 ml. of blood and which is detected in the test 
by the Breath Analyzer. That the Applicant was subjected to such test and 
the report indicated presence of alcohol exceeding the limits specified by 
clause   (a)   of   Section   185,   that   the   police   officer   decided   to   proceed 
against her. However, we  do  not  find that she  was arrested  as is  now 
claimed.   The   case   is   pending   in   the   Trial   Court.   No   opinion   need   be 
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expressed   on   merits   of   the   charges   which   are   levelled   against   the 
Applicant as they would prejudice the case of either side. We are of the 
opinion that the Applicant voluntarily and on her own accompanied the 
Police Officer in uniform and subjected herself to the test and thereafter, 
further process of law. The incident has taken place on 27.04.2011 and on 
that   date   the   Applicant   after   subjecting   herself   to   the   test   was   not 
detained   in   custody   or   arrested,   but   allowed   to   go.   She   was   free 
throughout and even when she has not accepted guilt, but claimed to be 
tried. In these circumstances to now urge that she was arrested, would 
not   be   proper.   The   Applicant   has   understood   the   whole   matter   in   the 
perspective in which she has seen it and as narrated in paragraphs 2 and 
3 of  this Criminal Application. In these circumstances we do not see how 
any prejudice has been caused.
41
The   argument   that   subjecting   oneself   to   the   test   itself   is 
deprivation of life and liberty, cannot be accepted in the teeth of the clear 
language of Sections 185, 202 and 203 of the MV Act. It is only when a 
police   officer   in   uniform   requires   any   person   driving   or   attempting   to 
drive a motor vehicle in a public place, to provide one or more specimens 
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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 
that   the   requirement   of   Breath   Test   has   to   be   fulfilled.   Secondly,   that 
requirement is to be fulfilled in the event a motor vehicle is involved in 
accident in a public place and a police officer in uniform has a reasonable 
cause to suspect that a person who was driving the motor vehicle at the 
time of accident has alcohol in his blood or that he was driving the motor 
vehicle   under   the   influence   of   drugs,   that   he   may   require   the   person 
driving the motor vehicle to provide specimen of his breath for Breath 
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Test. Either which way, subjecting oneself to such tests by itself does not 
deprive a person of his liberty inasmuch as he is not arrested as claimed. 
If that was the intent, then, the Legislature would not have incorporated 
or inserted sub­sections (3) and (4) in Section 203. The consequences are 
provided   by   sub­section   (5)   of   Section   203.   Thus,   the   arrest   is 
contemplated only so as to carryout the Breath Test. The results of Breath 
Test may in pursuance of the provisions of Section 203 shall be admissible 
in   evidence   and   by   the   explanation   provided   below   sub­section   (6)   of 
Section   203,   it   would   be   apparent   as   to   why   Section   203   has   been 
brought on the statute book. The Breath Test and Laboratory Test are both 
provided in order to obtain a proof of person being in such state as could 
be termed as unfit to drive a motor vehicle.
42
Section 205 of the MV Act makes the matter more clear. It 
reads as under:­
“205.  Presumption of unfitness to drive. – 
In   any   proceeding   for   an   offence   punishable   under  
section   185   if   it   is   proved   that   the   accused,   when  
requested by a police officer at any time so to do, had  
refused, omitted or failed to consent to the taking of  
or providing a specimen of his breath for a breath test  
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43
or a specimen of his blood for a laboratory test, his  
refusal,   omission   or   failure   may,   unless   reasonable  
cause   therefor   is   shown,   be   presumed   to   be   a  
circumstance supporting any evidence given on behalf  
of the prosecution or rebutting any evidence given on  
behalf of the defence, with respect to his condition at  
that time.”
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A   bare   reading   thereof   would   enable   us   to   hold   that 
presumption of unfitness to drive the motor vehicle can be raised in any 
proceedings for an offence punishable under Section 185 if it is proved 
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that the accused, when requested by a police officer at any time so to do, 
had refused, omitted or failed to consent to the taking of or providing a 
specimen of his breath for a Breath Test or a specimen of his blood for a 
Laboratory   Test,   then,   his   refusal,   omission   or   failure   may,   unless 
reasonable cause therefor is shown, is presumed to be a circumstance as 
indicated in Section 205. Thus, the presence of alcohol or drug would 
lead the competent court to conclude that the vehicle was driven by a 
person, who has alcohol in his blood or was under the influence of a drug 
to   such   an   extent   so   as   to   render   him   incapable   of   exercising   proper 
control of the vehicle. By Section 184, the offence is of dangerous driving. 
However, in order to find out whether a person was under the influence 
of alcohol that the tests are provided. Moreover, a complete reading of the 
statutory provisions in question would denote that there is no arrest or 
deprivation of life and liberty. If that were to be the intent, the words 
“unless reasonable cause therefor is shown” would not appear in Section 
205. In these circumstances by mere subjecting oneself to the tests, the 
right to life and liberty guaranteed by Article 21 of the Constitution of 
India is not in any way jeopardized. 
44
Even   the   power   to   arrest   without   warrant   conferred   by 
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Section 202 of the MV Act is subject to certain conditions and it has been 
clarified that a person arrested by a police officer in connection with an 
offence punishable under Section 185 shall within two hours of his arrest 
be subjected to a medical examination referred to in Sections 203 and 
204 by a registered medical practitioner. Failure to subject him to such 
test within the time specified would result in his release from custody. The 
proviso to sub­section (1) of Section 202 would show that it is only when 
a   police   officer   in   uniform   on   being   satisfied   that   in   his   presence   an 
offence punishable under Section 184, 185 or 197 is committed that he 
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may arrest without warrant such person. However, in connection with the 
offence carved out by Section 185 a person arrested would have to be 
subjected to the tests. A person can be arrested if he refuses to give his  
name and address and equally what one finds is that the requirement for 
a Breath Test has to be made as soon as reasonably practicable after the 
commission   of   such   offence.   (see   sub­section   (1)   of   Section   203). 
Therefore,   the   power   to   arrest   without   warrant   in   case   of   the   offence 
punishable under Section 185 of the MV Act is only to enable a police 
officer in uniform to subject a person to the tests specified in Sections 203 
and 204 of the MV Act. Thereafter, it is for the law to take its course. In 
such circumstances the argument that by subjecting the Applicant in this 
case to a Breath Test means she was arrested and that power having been 
exercised without pre­registration of a First Information Report entails in 
deprivation of her life and liberty, cannot be accepted.
45
If   it   cannot   be   accepted   in   this   case   and   for   the   reasons 
aforestated, then, any larger issue or wider controversy need not be gone 
into.   In   a   given   case   and   if   the   arrest   effected   by   taking   recourse   to 
Section 202 and sub­sections thereof continues, then, depending upon the 
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circumstances in each case a conclusion can be drawn that a person is 
deprived of his life and liberty without due process of law. In that event 
the   competent   court   can   make   appropriate   orders   protecting   life   and 
liberty of an aggrieved person. Beyond that we do not think any academic 
discussion and with regard to the correctness of the view taken by the 
learned Single Judge of this Court is necessary. We are of the opinion that 
the   learned   Single   Judge   has   not   observed   anything   contrary   to   the 
mandate flowing from Sections 185, 202 and 203 of the MV Act insofar as 
subjecting a person to the tests enumerated therein. The learned Single 

Judge's observations thereafter need not detain us because once the above 
view on facts can be taken, then, the further aspects of the question as to 
whether   the   offence   punishable   under   Section   185   of   the   MV   Act   is 
cognizable   or   non­cognizable   need   not   be   decided.   In   any   event,   the 
offence cannot be said to be cognizable only because a power is conferred 
to   arrest   any   person   committing   such   offence,   without   warrant.   It   is 
apparent that a person arrested in connection with an offence punishable 
under   Section   185   of   the   MV   Act   has   to   be   subjected   to   a   medical 
examination referred to in Sections 203 and 204 by a registered medical 
practitioner.   The   Breath   Test   has   to   be   carried   out   so   as   to   ascertain 
whether there was presence of alcohol in his body or a person was under 
the influence of a drug. Therefore, this is not an absolute power to arrest 
without warrant, but subject to the conditions specified in law and there 
are inbuilt safeguards and protection so that a person is not deprived of 
his life and liberty. In these circumstances merely because the power to 
arrest without warrant is conferred in a police officer in uniform does not 
mean that the offence is cognizable. Even if a person is to be subjected to 
the tests, the Police Officer must have a reasonable cause to suspect him 
of having committed an offence punishable under Section 185. Therefore, 

if there is a reasonable cause to suspect a person having committed an 
offence   punishable   under   Section   185,   that   he   can   be   subjected   to   a 
Breath Test and by calling upon him or requiring him subject himself to 
such test, is not necessarily arrest. He could be arrested provided a Breath 
Test carried out on him indicating presence of alcohol in his blood. He 
cannot be arrested if he is at a hospital as an indoor patient. If the person 
concerned refuses to provide a specimen of breath for a Breath   Test or 
fails to do so and a police officer has a reasonable cause to suspect him of  
having alcohol in his blood that he may arrest that person except while 

that person is in hospital as an indoor patient. Even after his arrest he 
shall   while   at   police   station   be   given   an   opportunity   to   provide   a 
specimen of breath for a Breath Test. Therefore, with all this it is not as if  
the offence can be said to be cognizable. Additionally also because of the 
extent of punishment, namely, imprisonment for less than two years that 
a   conclusion   can   safely   be   reached   that   an   offence   punishable   under 
Section 185 of the MV Act is not cognizable.
46
For the aforesaid reasons, we find no merit in this criminal 
(G.S. Patel, J)
     (S.C. Dharmadhikari, J)
application. The Criminal Application is dismissed. Rule is discharged.


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