State v Kumar [2006] FJMC 6; Traffic Case No 3610 of 2005 (24 March 2006)

IN THE FIRST CLASS MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

TRAFFIC CASE NO. 3610 OF 2005

STATE

V

PRADEEP KUMAR s/o Rajend

For Prosecution: Sgt. S. Ali
Accused: In person

Date of Hearing: 07/03/06, 13/03/06
Date of Judgment: 24/03/06

JUDGMENT

The accused is charged with two counts which are as follows:

FIRST COUNT

Statement of Offence

REFUSED TO UNDERGO BREATH ANALYSIS WHEN REQUIRED TO DO SO BY A POLICE OFFICER

Contrary to section 103 (1) (b) and 114 of Land Transport Act, No. 35 of 1998.

Particulars of Offence

PRADEEP KUMAR s/o Rajend on the 6th day of May 2005 at Lautoka in the Western Division, upon being required by a police officer namely, CPL 1084 Rajesh Chandra to supply sufficient sample for breath analysis, refused to undergo that breath analysis test in accordance with the direction of the said CPL 1084 Rajesh Chandra.

SECOND COUNT

DRIVING UNLICENCED MOTOR VEHICLE

Contrary to section 49 (1) (3) and 114 of Land Transport Act, No. 35 of 1998.

Particulars of Offence

PRADEEP KUMAR s/o Rajend on the 6th day of May 2005 at Lautoka in the Western Division drove a motor vehicle registration number BA 284 on Queens Road Lomolomo when the said vehicle was not duly registered with Land Transport Authority and had its motor vehicle licence expired on 29/04/04.

The accused admits that he is the owner of the motor vehicle registration number BA 284 (motor vehicle) and he also admits that the registration had expired on 29/04/04.

The accused denies driving the motor vehicle on the day in question. He said that the motor vehicle was driven by one Ajay Kumar.

Joji Suguturaga (PW1) is a Senior Enforcement Safety Officer with the Land Transport Authority. On 16/05/05 he together with his other colleagues and police officers were checking motor vehicles at Lomolomo Police Post.

PW1’s evidence is that he stopped the motor vehicle and checked the sticker on the windscreen and saw that it was expired and he therefore directed the driver to drive into the police post compound. He said that the accused was the driver. He also said that the accused is known to him as he drives a bus for Lautoka General Transport and he therefore had no difficulty in identifying him.

He said that the accused parked the motor vehicle into the police post compound and when he spoke to him, he smelt alcohol on his breath and he asked to get out of the motor vehicle. He said that at that point in time they had stopped too many motor vehicles and he therefore became occupied and when he returned he saw that the accused had disappeared.

He said that he stopped the accused’s motor vehicle at around 7.00 p.m. and he said that he remained at the Lomolomo Police Post till 8.00 p.m. when he and his other colleagues took some motor vehicles which were seized to the Lautoka LTA office. He also said that he had informed PW2 prior to his leaving the police post that the motor vehicle should not be released to the accused when he comes back as the registration had expired and also that the accuseds’ breath heavily smelt of liquor.

PC Sevo Laitia (PW2) is based at Lomolomo Police Post. He is a police support officer and he was on duty on 06/05/05 from 5.30 p.m. and he was working with the LTA officers. Out of the five LTA officers he only knew the name of one officer namely Vimal. He said that he saw the PW1 stop the accused’s motor vehicle. He also said that he knows the accused personally. He was unable to recollect the registration number of the motor vehicle. He said he made notes in the police note book and asked for leave to refresh his memory and I granted him leave to do so. He checked the note book but was unable to locate the registration number and he then said that he made notes in the police post diary. He did not have the police post diary with him.

His version is in slight conflict with the evidence of PW1. He said that after the accused was stopped he waited for more than half an hour as all the LTA officers were very busy and after half an hour he was told that the accused had run away. He also said that the accused’s motor vehicle was parked on the left hand side of the road and not in the police post compound. He further said that the LTA officers parked the motor vehicle in the police post compound and handed the keys to him.

He said that the accused came back at 1900hrs (i.e. 7.00 p.m.) and was very drunk and asked for the keys. PW1 is not sure whether the keys were handed over to (PW2) by the accused.

PW2 said that since the accused was very drunk he arrested him and informed the Highway patrol and the accused was handed over to the PC Dharmendra Prasad (PW3).

PW3 said the accused was handed over to him at about 7.00 p.m. and he appeared to be drunk so he administered and Alcotest (7410º) and he had a reading of 63 micrograms so he took him to the Lautoka Police Station. The accused was asked to supply breath samples by Cpl. Rajesh Chandra (PW4) on a dragger machine at 7.28 p.m. PW4 is authorized by the Commissioner of Police to operate the dragger machine. On two occasions the accused supplied insufficient samples of breath and on the third occasion he just refused to provide any sample and as a result he was charged with the offence of refusing to undergo breath analysis when required to do so by a police officer.

I accept the evidence of PW1 and PW2 and hold that the accused was driving the motor vehicle and when he was stopped he did not have anybody else with him and he was the sole occupant of the motor vehicle.

According to PW1 the accused was stopped at 7.00 p.m. and he escaped shortly thereafter and PW1 said that he remained at Lomolomo Police Post until 8.00 p.m. Whilst the evidence of PW2 is that the accused came back to the Lomolomo Police Post at 7.00 p.m. and the breath analysis test was completed by PW3 at 7.35 p.m. If the accused was stopped at 7.00 p.m. by PW1 then the evidence of PW2 cannot be correct. The time of the accused’s stopping is very crucial for the purposes of Section 104 of the Land Transport Act 1998. Section 104 reads as follows:

"(1) A police officer may require-

(a) a person in respect of whom section 102(2) applies;

(b) the driver of a motor vehicle that has been required to stop under subsection (2); or

(c) a person the police officer believes on reasonable grounds has within the preceding 2 hours driven or been in charge of a motor vehicle when it was involved in an accident, to undergo a breath test or breath analysis according to the procedures prescribed in the regulations:

Provided that –

(a) no breath test or analysis shall be conducted after 2 hours have elapsed from the time the driver has been driving or in charge of the motor vehicle unless the breath test or analysis could not have been carried out earlier due to the condition of the driver;

(b) a person shall not be detained for the purposes of breath test or analysis for more than 30 minutes.

(2) A police officer may stop any motor vehicle for the purpose of conducting random breath testing in accordance with operational instructions for such testing issued by the Commissioner of Police."

PW2 said that the LTA officers were busy as they had stopped too many motor vehicles and he said that he was told that the accused had run away after half an hour. Under Section 104 (1) (b) a person shall not be detained for the purpose of breath test or analysis for more than 30 minutes. PW1’s evidence does not suggest that the accused was ever detained. If the accused was indeed detained by PW1 than he was quite entitle to walk away after a lapse of 30 minutes period.

On the other hand if the accused was asked to submit to a breath test then that test had to be conducted within 2 hours of his last act of driving. On the evidence before me it is not clear as to when the accused last drove the motor vehicle. If he last drove the motor vehicle more than two hours ago then he was under no obligation to submit to any breath test. The time element is very crucial and unfortunately it has not been established by the prosecution as to when the accused last drove the motor vehicle and I therefore have to resolve the doubt in favour of the accused and the accused is acquitted on Count 1.

On Count 2 the accused has admitted the charge and I therefore find him guilty of the charge and convict him of the charge.

[Mohammed Shafiullah Khan]
Resident Magistrate