108-NLR-NLR-V-73-J.-E.-M.-SENEVIRATNE-Appellant-Appellant-and-A.-H.-M.-JAHAN-S.-I.-Police.pdf
SIVA SUTRAMANIAM, J.—Seneviratne v. Jahan
567
1967Present: Siva Supramanlara, J.
J. E. M. SENEVIRATNE, Appellant, and A. H. M. JAHAN(S. I. Police), RespondentS. C. 203j67—M. C. Narahenpita, 31302‘"Motor Traffic Act (Cap. 203)—Section 131 (1)—Charge of driving when under theinfluence of alcohol—Quanta r of evidence.
A person cannot be convicted of having driven u motor car on a highwaywhilo ho was under the influence of alcohol, in breach of section 151(1) of thoMotor Traffic Act, if tho ovidenco decs not indicato that, as a result of thoalcohol ho had consumed, his powers of co-ordination and orientation had boonimpaired or that his capacity to drive a car had beon prejudicially affected.
Appeal from a judgment of the Magistrate's Court, Narahonpita.
R. S. R. Coon taros teawy, with S. Sah'abandu, for the accusedappellant.
Sunil de Silva, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 3, 1967. Siva Suntamam.am, J.—
The appellant was convicted in this case on a charge of having driven amotor car on a highway while he was under tho influence of alcohol inbreach of S. lnl(l) of the Motor Traffic Act and sentenced to pay a finoof Its. 250, in default to undergo six weeks simple imprisonment. He Jiasappcalcd from the conviction and sentence. There was a second count
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SIVA SUPRAMANIAM, J.—Sene vita t»e v. Johan
that he had failed to take such action as was necessary to avoid anaccident in. breach of S. 149 (1) of tho Motor Traffic Act but he wasacquitted of that charge.
The facts of the case may be briefly stated as follows :—
On 23rd October 1964 at about 2 p.m. the appellant Mho was drivinghis car No. 3 Sri 4141 along Skinner’s Road South in Colombo, while over-taking taxicab No. 3 Sri 272S, collided with it on the right side causing ascrape mark on the right rear mudguard and a dent on t he hub cap of theright rear wheel of the said taxicab. It was conceded that the damagewas very slight. The taxi driver made a complaint at the KotahenaPolice Station. The appellant too drove in his car to the same PoliceStation and arrived there before the taxi driver’s statement was recorded.
P.C. Dhanapala to whom the complaint was made formed the impressionthat the appellant was after liquor and took him to the Assistant JudicialMedical Officer, who, after examination, reported that the appellant wasunder the influence of alcohol. The charge contained in count (1) wasbased on the Medical Officer’s report.
The taxi driver in his evidence stated that the appellant was " after.drinks ” and P. C. Dhanapala stated that the appellant "was unsteady ”.The learned Magistrate relied principally on the evidence of the MedicalOfficer in convicting the appellant on count (1).
The Medical Officer stated in the course of his evidence-in-chief that heexamined the appellant at 3.45 p.m. and found him to be under theinfluence of alcohol and, in that condition, he was not in a fit condition todrive a motor vehicle. Under cross-examination he stated that he notedon the Police ticket the results of his examination on which he based hisopinion. He did not produce the document in evidence although, he, admitted, he had it with him in Court. But he read out what he hadentered on that ticket. According to that entry, the results of hisexamination were as follows :—
" (1) Strongly smelling of alcohol.
Tends to be talkative.
Pupils semi dilated and sluggish.
Performed tests but resents examination.
■ (5) Does not comprehend tho place ; and
(6) Tends to march.”
He stated that his opinion was " based on the sum to tal of all tests ”. Inthe course of his further evidence under cross-examination, the. witness-stated that he also tested the' appellant for “ rhombagism ” and theresult was positive. No explanation however was given by him.for hisfailure to include the result of this test in the. contemporaneous note -made by him on the Police ticket..: He also stated that the appellant’s
SIVA SUPRAMAXIAM, J.—Seneviralnc v. Johan .669
“ clothes were in disarray ” and ,f his face ivas flushed ” but these toowore not noted by him on the ticket. He admitted, however, that theappellant’s mornorv for recent events was good, that ho was coherentand had no difficulty in recalling what had happened. When asked fortho time, the appellant looked at his watch and gave him the time. Butho made no record whether the time given was correct or not. •
Tho witness examined the appellant on 22.10.64 but gave his evidoncein Court on 15.1.67. It would therefore be safer to rely on the resultsof tho tests as recorded by him in his contemporaneous note than on hisrecollection of tho details more than two years later.
x In regard to the six items mentioned in the note, he explained thatitom (5)—*s does not comprehend tho place ”—meant that the appellant“ was not at first aware for what purpose he was brought there”. If thePolice had not told the appellant where and for what purpose he wasbeing taken, he would not have been aware why he had been taken tothat place. That can hardly be regarded as a point against the appellant.In regard to items (4) and (6)—” Resents examination ” and “ Tends tomarch ”,—the witness admitted that when he asked the appellant towalk, ho marched ” because he resented m3' attitudo”. Ho did not sa3‘that ho found the appellant’s gait unsteady. Tho appellant may wellhave marchod in order to impress on the doctor that not only could hewalk steadil3’ but could even do something more difficult, narnety, marchsteadily, showing proper co-ordination of his limbs. The note underitem (4) shows that the appellant performed all the tests, that is, carriedout all the tests successfully.
The onl3' circumstances against the ajipcllant were that he was strongl^vsmelling of alcohol and that his pupils were semi-dilated and sluggish.These would undoubtedly indicate that the appollant had consumedalcohol. The question however is whether a person who drives a car ontho highway after having consumed alcohol commits a breach of S. 151(1)of the Motor Traffic Act.
Til the case of Don Carlhelis v. IbraJiim 1 Oration J. after examining thissection of the Act, as well as the corresponding legislation in England,reached the conclusion that a person caiuiot be convicted under thissection unless the evidence justifies the inference that tho accused personwas under tho influence of drink to such an extent as to be incapablo ofhaving proper control of tho vehicle. With respect, I am in agreementwitli that viow. The evidence in this case docs not indicate that asa result of tho alcohol ho had consumed, the appellant’s powers ofco-ordination and orientation had been impaired or that his capacit3' torlrivo a car bad been prejudicially affected. Tho fact that the appollant'scar had gra/.cd tho taxicab while overtaking it cannot load to a necessaryiufcrcncc that the appellant was incapable of having proper control of
1 (I'Joo) 50 .V. L. H. 501.570
WIJAYATILAKE, J.—Thirunavakarasu v. Thurairatnam
his vehicle. There is no evidence that oither immediately beforo or afterthe accident the appellant drove his car in such a manner as to showwant of control over it. On the other hand according to the evidencethe appellant drove the car quite competently from the scene of theaccident to the Police Station.,
The learned Magistrate misdirected himself by relying on the MedicalOfficer’s opinion without closely examining the effect of the evidencegiven by him under cross-examination.
On the evidence led, the prosecution failed to establish beyondreasonable doubt the charge under count (1). I
I set aside the conviction of the appellant on comit (1) and acquithim.
Appeal allowed.