Shibu Vs. State of Kerala

- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - blood test is enabled only in cases falling under section 204(1)(a) or (b) of the motor vehicles act namely only in cases where it appears to the police officer on breath test that there is presence of alcohol in the blood or when the offender when given an opportunity to submit to breath test has refused, omitted or failed to do so. in the instant case the police have no case that the petitioner had been subjected to breath test or that he has failed or refused to submit to breath test.orderk.p. balachandran, j.1. the petitioner is the accused in s.t.2581 of 2002 on the file of the judicial first class magistrate's court-i, aluva taken cognisance of for offence under section 185 of the motor vehicles act.2. it is the case of the prosecution that the accused was found riding motor cycle no.kl-7/j-5257 from north to south along the road from kakkanad to pattupura junction at about 8.50 p.m. on 18.1.2002 after having consumed alcohol and thereby committed offence under section 185 of the motor vehicles act. the report of the sub inspector registering the crime suo motu seen from annexure-i as also the attested copy of the vehicle mahazar dt. 18.1.2002 submitted before me for perusal by the counsel for the petitioner shows that the petitioner had not been subjected to breath test using a breath analyser in compliance with section 185 of the motor vehicles act but that the petitioner was being arrested on the belief of the detecting officer that the petitioner has consumed alcohol. annexure-al first information report shows that the crime was being registered after obtaining medical report. as per section 2o3 of the motor vehicles act what is required to be conducted is breath test and not blood test. blood test is enabled only in cases falling under section 204(1)(a) or (b) of the motor vehicles act namely only in cases where it appears to the police officer on breath test that there is presence of alcohol in the blood or when the offender when given an opportunity to submit to breath test has refused, omitted or failed to do so. in the instant case the police have no case that the petitioner had been subjected to breath test or that he has failed or refused to submit to breath test. consequently therefore it cannot be said that going by the prosecution case taken as such to be true, the case is one which will end in conviction. hence prosecution of the trial of the case will only be an abuse of the process of court.in the result, allowing this.....