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‘if Biker Clears Breathalyser, Unlawful To Test Pillion Rider’ | Mumbai News – Times of India

MUMBAI: Acquitting a 37-year-old man riding pillion on a bike who was booked for assaulting a traffic cop after he refused to undergo the alcohol test in 2013, a sessions court observed that 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 (prosecution witness-cop) to ask accused to subject himself to the test. The action of PW-1 asking 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,” the court said.
The court said that in order to attract Section 353 of the Indian Penal Code — assault or criminal force to deter public servant from discharge of his duty — prosecution has to prove that the assault was inflicted by accused when public servant was discharging his official duties with intention to deter or obstruct him from performance of his duties. The court said that there is nothing on record to indicate that on that day, accused was found to have consumed liquor. “Refusal on the part of accused to undergo breath analyzer test, cannot be said to be disobedience of law or traffic rules. The alleged use of criminal force by accused on PW-1 cannot be said to have been inflicted while he was discharging his public duties in as much as, the act of PW- 1 in asking accused to undergo breath analyzer test is illegal, therefore, charge under Section 353 of IPC is not established,” the court said.
It was the prosecution’s case that the accused, Prabhakar Somvanshi, and his brother were on the Sion-Trombay Road when a little after midnight on February 24, 2013, the bike was stopped at a nakabandi. The cop, Tanaji Mandhare, demanded the license from the bike rider but he could not produce it. Suspecting that both accused and rider consumed liquor, he checked the breath of the rider. It was alleged that when he wanted to test the breath of accused with the machine, he objected to it. The cop alleged that the accused raised a quarrel with him and abused him. The cop alleged that he tried to pacify him but the accused rushed towards him and assaulted him. With the help of the other cops, the accused was taken to the police station, the prosecution alleged.
The accused said that he was falsely implicated. Acquitting him, the court said, “There is nothing on record to show accused was under the influence of liquor. It is the evidence of PW-1 that accused abused him. The particulars of abuses are not stated by PW-1 in his evidence,” the court said.

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