‘Can’t conduct breathalyser test by force’: Mumbai court acquits pillion rider who refused to take test

“It is admitted by PW-1 (traffic constable) in his evidence that Breath Analyzer Test is to be conducted on the driver of the vehicle and if test is found to be positive then action is taken against the driver. There is nothing on record to indicate as to what prompted PW-1 to raise suspicion about the accused being in drunken condition. There was no material with them to indicate that the accused was found under the influence of liquor. Breath Analyzer Test cannot be conducted by force. Since driver was not found under the influence of liquor, there was no reason for PW-1 to ask accused to subject himself for the test,” the court said in its order.

The breathalyser test requires motorists to breathe into a handheld device which can determine the level of alcohol in the person’s blood. If it is seen to be beyond the permissible limit, action can be taken against the motorist for driving in an inebriated state.

According to the case details, Prabhakar Somvanshi was riding pillion with his brother on a bike on February 24, 2013 on Sion-Trombay Road. The traffic police stopped them and asked for the rider’s driving licence. It was said that he could not produce the licence and the police also suspected the rider and Somvanshi to be under the influence of alcohol. The police claimed that when Somvanshi was asked to undergo the breathalyser test, he refused.

The police alleged that he then abused two policemen and assaulted them. Somvashi was booked under charges including section 353 (assault or criminal force to deter public servant from discharge of his duty), 332 (voluntarily causing hurt to deter public servant from his duty) of the Indian Penal Code.

“The action of PW-1 asking the accused for Breath Analyzer Test in absence of material to show that he was under the influence of liquor, is unlawful and against traffic rules. Since the action of PW-1 in asking accused to subject himself for Breath Analyzer Test is itself unlawful, therefore, it cannot be said that the said action of PW-1 comes within the arena of his public duties,” the court said while acquitting the accused under section 353 IPC.

It also said that the police had not produced any evidence on the alleged assault or given any details of the alleged abuses uttered by the accused, clearing him of the other charges.

“There is nothing on record to indicate that on that day the accused was found to have consumed liquor. If the accused was sent for medical examination, it was obligatory on the part of prosecution to have filed the blood sample report concerning the accused. Non-filing of
blood sample report itself suggests that the accused had not consumed liquor on that day. Refusal on the part of the accused to undergo Breath Analyzer Test, cannot be said to be disobedience of law or traffic rules,” additional sessions judge N P Mehta said.