NALINDA KUMARA v. OFFICER-IN-CHARGE TRAFFIC POLICE KANDY AND ANOTHER

037-SLLR-SLLR-2007-V-1-NALINDA-KUMARA-v.-OFFICER-IN-CHARGE-TRAFFIC-POLICE-KANDY-AND-ANOTHER.pdf


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NALINDA KUMARAv
OFFICER-IN-CHARGE TRAFFIC POLICE KANDYAND ANOTHER
SUPREME COURTBANDARANAYAKE, J.
MARSOOF, J.
SOMAWANSA, J.
SC 57/2006SC Spl LA 31/2006HC KANDY 141/2006MC KANDY 53583MARCH 21, 2007MAY 23, 2007JULY 19, 23, 2007
Motor Traffic Act as amended by Act 40 of 1984 – section 151 (1) (B), section214, section 216- Regulations – Breathalyzer test – Quantum of alcohol in theblood – Procedure to befollowed- Death caused by driving a motor vehicleafter consumption of alcohol – Penal Code section 298 – Driving afterconsuming alcohol and driving under the influence of liquor?
The accused was charged with (i) driving a private car on a public highwaynegligently and causing the death of one R. Offence punishable under section298 – Penal Code (ii) driving after consuming liquor – under section 215 of theMotor Traffic Act -read with section 151 (1) B of Act 31 of 1979 – Punishableunder section 216 of the Act and 5 other counts.
The Magistrate found the accused guilty on all counts. The High Court inappeal varied the sentence imposed in respect of counts 2, 3 and 4. Theappellant appealed against the conviction and sentence on count 2. Specialleave was granted on the questions.
Does the evidence led to establish that the consumption of alcohol wasabove the quantum contemplated by regulations?
Does the evidence establish that the appellant caused the death by drivingthe motor vehicle after the consumption of alcohol?
Nalinda Kumara v Officer-in-Charge Traffic Police Station Kandy and another
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Held:
In order to establish the concentration of alcohol in the blood the policeofficer was required to carry out a breathalyzer test using an alcolyser. Theprocedure to carry out a breathalyzer test using the Alcolyser is found in IGCircular 697/87.
For a positive reading, it is necessary to read that, the yellow crystals havechanged to green and the green stain has extended to the red line at thecentre of the tube.
There is no mention in the observations of the police officer regarding thegreen stain extending to the red line at the centre of the tube.
In terms of the circular the parties in question should blow only once andshould not blow thrice as alleged. In order to ascertain as to whether asuspect driver had been under the influence of liquor, it is apparent that, 15second period of one continuous blowing is extremely important to obtainthe reading of an assume content of 0.08 gms per 100 millilitres of blood.
PerShirani Bandaranayake, J.
"It is evident that a serious doubt has been created as to the concentration of
blood in the appellant's blood at the time of the accident.
Held further:
Section 151 (1)B of the Motor Traffic Act was introduced by the MotorTraffic Act 31 of 1979 (amended), with the amendment to section 151, "anyperson who drives a vehicle on a highway after he has consumed alcohol orany drug and thereby causes death or injury to any person shall be guilty ofan offence under the Act".
Prior to the amendment which came into effect in 1979 the known conceptwas on the basis of "under the influence of liquor – section 151(1) read as"no person shall drive a motor vehicle on a highway when he is "under theinfluence of liquor" or any drug.
The question whether the ingredients that has to be proved under section151 (1) B be limited to the appellant having consumed alcohol, driving onthe highway and causing the death – a mere statement to indicate that aperson had consumed alcohol is not enough. Section 15(c), section 151(1)B.
Section 151(1c) (a) and section 151 (1C) (c) clearly have provisions for thepolice either to obtain a breath test or a medical report to ascertain andestablish that the driver, whom the police officer suspects had consumedalcohol/drug and in order to facilitate the process of these tests, theamendment had made provision to make regulations – section 151 (1D).
Such regulations in terms of the Motor Traffic Act were introduced underI.G. Circular 679/87 of 1.9.87. The circular clearly stipulated the need for abreath test.
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Per Shirani Bandaranayake, J.
“It is evident that when a person is charged in terms of sections 151 for havingcommitted an offence under the said section having consumed alcohol theprosecution has to prove that the said person had a minimum concentration of0.08 grams of alcohol per 100 millilitres in his blood Regulations 1.3,1.4,1.5,1.6.
The prosecution has failed to prove that the appellant had a minimumconcentration of 0.08 of alcohol per 100 millilitres in his blood – the appellantshould be acquitted on count 1.
APPEAL from the Judgment of the High Court of Kandy.
Faiz Musthapha PC with Amarasiri Panditharatne and Neomal Perera foraccused-appellant-appellant.
Riad Hamza SSC with Harshika de Silva SC for respondent-respondent-respondent.
December 12, 2007
SHIRANI A. BANDARANAYAKE, J.
This is an appeal from the judgment of the Provincial High Courtof the Central Province holden in Kandy dated 09.12.2005. By thatjudgment the learned Judge of the High Court acquitted theaccused-appellant (hereinafter referred to as the appellant) fromcounts 1 and 5 and affirmed the convictions in respect of counts 2,3,4, 6 and 7. The learned Magistrate had found the appellant guiltyof all counts and in respect of count 1, the Magistrate has imposeda sentence of one year's rigorous imprisonment and on counts 6and 7, a fine of Rs. 1000/- each with a default sentence of 3 monthssimple imprisonment had been imposed.
The appellant had appealed from that order against theconviction and sentence to the Provincial High Court of the CentralProvince. The High Court varied the sentences imposed by thelearned Magistrate in respect of counts 2, 3 and 4 and imposed thefollowing sentences.
count 2 – mandatory sentence of two (2) years rigorousimprisonment and cancellation of his driving licence.
count 3 – Rs. 500/- fine with a default sentence of three (3) monthssimple imprisonment.
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count 4- Rs. 1000/- fine with a default sentence of three (3)months simple imprisonment.
There was no variation in regard to the sentences imposed bythe learned Magistrate in respect of counts 6 and 7. The appellantappealed to this Court for which special leave to appeal wasgranted on the following questions:
Does the evidence led in the trial establish that theconcentration of alcohol in the appellant's blood was abovethe quantum contemplated by regulations framed under theMotor Traffic Act?
Does the evidence led in the trial establish that the appellantcaused death or injury by driving the motor vehicle after theconsumption of alcohol as contemplated by section 151(1 )Bof the Motor Traffic Act?
The facts of his appeal, albeit brief are as follows:
The appellant, a 24-years old junior executive of a Bank, at thetime of the alleged offence, was charged in the Magistrate's Court,Kandy for the following offences:
driving private car No. 17-0332 on a public highwaynegligently, viz., at an excessive speed and without due careand control and consideration for other users of the road andcausing the death of one Saraswathi Rajendran and therebycommitting an offence punishable under section 298 of thePenal Code.
driving on the highway after consuming liquor and therebycommitting an offence under section 214 of the Motor TrafficAct, read with section 151 (1 )B of Act, No. 31 of 1979 andpunishable under section 216 of the said Act;
driving a vehicle on a highway negligently, viz. –
at an excessive speed under the circumstances,
without necessary control,
without due care,
without due consideration for other users and collidingwith a pedestrian crossing the road and causing her death
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and thereby committing an offence under section 214(1)Aof the Motor Traffic Act read with section 151(3) of theMotor Traffic Act read with section 271 (2) as amended byAct, No. 40 of 1984.
failing to avoid an accident due to –
driving at an excessive speed,
without due precaution,
without taking due care and colliding with a pedestriancrossing the road and thereby committing an offence undersection 214 of Motor Traffic Act punishable under section224 as amended by Act, No. 24 of 1984.
failing to drive the vehicle on the left side thereby committing anoffence under section 214(1) of the Motor Traffic Act punishableunder section 224 of the said Act.
not possessing a valid third party insurance cover for thevehicle an offence punishable under section 218 of the MotorTraffic Act.
not possessing a valid revenue licence for the vehicle an offencepunishable under section 214(A) of the Motor Traffic Act.
The incident relevant to this appeal took place near Royal MallHotel on the William Gopallawa Mawatha, Kandy around 11.30 p m.,on 06.07.2001. Ramaiah Rajendran, the husband of the deceasedhad attended a function of the Lions Club with his wife at the RoyalMall Hotel situated along William Gopallawa Mawatha, Kandy. Afterthe function, Rajendran had walked across the road with his wife toget into their car parked on the opposite side, close to the rail road.While Rajendran had been in the process of opening the car door, hiswife was hit by the appellant's vehicle and was thrown 6 feet forward.The appellant had also attended a function on that night at the EarlsRegency Hotel in Kandy, where the Rotary Club had presentedscholarships to selected students and the appellant had been one ofthe recipients. He had been returning with his friend, one SamithaWickramaratne, and was driving towards the said friend's home atPilimatalawa, when this incident had occurred.
Having stated the facts of this case, let me now turn to examinethe questions on which special leave to appeal was granted.
Nalinda Kumara v Officer-in-Charge Traffic Police Station Kandy and another
SC(Shirani Bandaranayake, J.)337
(1) Does the evidence led in the trial establish that theconcentration of alcohol in the appellant’s blood was abovethe quantum contemplated by regulations framed under theMotor Traffic Act?
Learned President’s Counsel for the appellant contended that,to establish the concentration of alcohol in the appellant's blood thepolice officer was required to carry out a breathalyzer test using theapparatus known as an Alcolyzer. It was further contended that theprocedure to carry out a breathalyzer test using the Alcolyzer wasstipulated in I.G. Circular No. 697/87. Learned President's Counselfor the appellant therefore submitted that among the procedurescontained in the said Circular, the following were extremely vitaland crucial to the case in question.
Clause 3.7 of I.G. Circular 697/87
Order shall be given by the police officer conducting thetest to the person concerned to first take a deep breathand continuously without a break, blow into the breathingbag for 15 seconds.
Clause 3.9 of I.G. Circular 697/87
At the conclusion of such a test the police officer isrequired to provide the person concerned with a reportcontaining the details of the breathalyzer test bearing thesignature and rank of the said police officer.
Learned Counsel for the appellant submitted that theaforementioned procedures were not followed by the police officer,as the police officer had got the appellant to blow into the Alcolyzerbreathing bag three (3) times in succession and on the third time, apositive reading had been obtained. The contention of the learnedPresident's Counsel for the appellant was that the procedureadopted by the police officer had created a serious doubt as to theaccuracy of the reading.
It was also contended that the police officer had not provided theappellant with the signed test report containing the details of thebreathalyzer test carried out, in terms of the I.G. Circular No.697/87.
Further learned President's Counsel contended that thebreathalyzer test carried out by the police officer in question had
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not followed the procedure laid down in the I.G. – Police Circular of
as the evidence led at the trial does not establish thatthe concentration of alcohol in the blood of the appellant at the timeof the accident had exceeded 0.08 grams of alcohol per 100millilitres of blood.
Learned President's Counsel for the appellant strenuouslycontended that the Provincial High Court had erred in failing to givedue consideration to a serious doubt that was created as towhether the appellant could have been intoxicated to a levelreflecting a reading of 0.08 grams per 100 millilitres of blood. Hiscontention was that the appellant in his evidence had stated that hehad suffered a head injury, which required him to undergo medicaltreatment for five (5) years. Due to this injury the appellant onmedical evidence had been requested to abstain from consumingalcohol.
Learned State Counsel for the respondents conceded that thebreath test should be carried out in terms of the provisionsstipulated by I.G.'s Circular No. 697/87 dated 01.09.1987 and28.11.1988. She also submitted that in terms of the applicableregulations, if the concentration of alcohol in the appellant's bloodwas at or above 0.08 milligrams of blood per 100 millilitres of bloodthen it should be established that the concentration of alcohol in theappellant's blood was above the quantum contemplated by theregulation made under the Motor Traffic Act. Having made thatsubmission, learned State Counsel for the respondent contendedthat such a position could be established only if the breath test foralcohol had revealed that result.
Based on the aforementioned submissions two questions arise,which are as follows:
did the police officer carry out the relevant test in terms ofthe I.G.'s Circular No. 697/87?
did the police officer, who carried out the test give theappellant a written statement stating the concentration ofalcohol in the appellant's blood?
Admittedly, the breathalyzer test had been carried out by PoliceSergeant 6589 Weerasinghe (hereinafter referred to asWeerasinghe) of the Kandy Police who, in his evidence(Magistrate's Court Proceedings pp. 163-176) had stated the
Nalinda Kumara v Officer-in-Charge Traffic Police Station Kandy and another
SC(Shirani Bandaranayake, J.)339
manner in which he had carried out the test. Describing the stepshe had taken after visiting the scene of accident, Weerasinghe hadstated that he had observed a difference in the appellant'sbehaviour. At that stage Weerasinghe had smelled his mouthwherein Weerasinghe had found that his breath was smelling ofliquor. He had thereafter arrested the appellant and had broughthim to the Kandy Police Station.
At the Police Station Weerasinghe had carried out a breathlyzertest on the appellant. He had described the procedure he hadfollowed in carrying out the said test, which was as follows:

Weerasinghe's evidence thus describes that he had carried outthe breathalyzer test in terms of the provisions laid down by the I.G.Circular and further that he had handed over the original of thereport to the appellant.
Learned President's Counsel for the appellant strenuouslycontended that the police officer, who conducted the breathalyzertest had not followed the procedure stated in I.G. Circular No.697/87. Referring to clause 3.7 of the said Circular referred toabove, learned President's Counsel for the appellant stated that interms of the said clause a suspect driver should only blow once intothe alcolyzer and in this instance the appellant was asked to blowthree (3) times against the procedure laid down by the said Circular.
Clause 3:7 of the I.G. Circular No. 697/87 specifically stated thatthe person in question should 'blow through the mouthpiece intothe bag by one deep continuous exhalation for 15 seconds'. It isthus apparent that the person in question should blow only onceand should not blow thrice as alleged by the appellant.
Learned State Counsel for the respondent submitted that thecontention of the appellant is contrary to the evidence of the policeofficer and that the appellant had taken this position only at thepoint, when he was cross-examined.
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The learned State Counsel for the respondent has not deniedthe fact that the appellant in his evidence has stated that he blewthree (3) times continuously into the breathing bag. It is also notdenied that this position is contrary to the evidence ofWeerasinghe. Considering the test carried out in order to ascertainas to whether a suspect driver had been under the influence ofliquor, it is apparent that 15 second period of one continuousblowing is extremely important to obtain the reading of an assumedcontent of 0.08 grams per 100 millilitres of blood.
In the circumstances, it is evident that a serious doubt has beencreated as to the concentration of alcohol in the appellant's bloodat the time of the accident.
The contention of the learned President's Counsel for theappellant is further strengthened on an examination of the positionregarding the aforementioned question on the observation of thebreathalyzer test.
The police officer Weerasinghe in his evidence had stated thathe had given the original of the report to the appellant. Theappellant however in his evidence had clearly stated that he wasnot given the said report. It is common ground that the report inquestion was not produced before Court. The importance of thereport is that it should contain the observations of the police officerregarding the test and should state that,
the time at which such test was carried out,
the place, where such test was conducted, and
the concentration of alcohol in that person's blood as wasreflected by the device used.

It is however to be borne in mind that the appellant in hisevidence had stated that the police officer in his effort to determinethe appellant's blood alcohol concentration had got the appellant toblow into the alcolyzer breathing bag three (3) times in successionand only on the third consecutive attempt a positive reading wasobtained. In his evidence, the appellant had clearly stated that,
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Clause 3:9 of the I.G. Circular No. 697/87 had explained as towhat the police officer should state under (iii) above. Accordingly itshould be stated that,
" '0.08 grams per 100 millilitres of blood'
If the yellow crystals have changed to green and thegreen stain has extended to the red line at the centre ofthe tube."
With regard to the breathalyzer test the said Circular in clause3:8 had further stated that,
"The tube is then removed from the bag. The tube is thenexamined. If the yellow crystals have changed to greenand the green stain extends to the red line at the centreof the tube the alcohol level in the blood corresponds tothe prescribed limit."
According to the proceedings of the Magistrate's Court (Pg. 143)the findings of the test was recorded as follows:
It is therefore quite evident that the said description is not interms with clauses 3:8 and 3:9(c) iii of the I.G. Circular No. 697/87,which clearly that, for a positive reading, it is necessary to read that,
“The yellow crystals have changed to green and diegreen stain has extended to the red line at the centre ofthe tube."
Admittedly, there was no mention whatsoever, in theobservations of the police officer regarding the green stainextending to the red line at the centre of the tube.
On a consideration of the aforesaid, it is apparent that theprocedure adopted by the police to ascertain the level of alcohol inthe appellant's blood had created a serious doubt as to whether thesaid concentration of alcohol in the appellant's blood was above thequantum contemplated by regulations framed under the MotorTraffic Act.

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In the circumstances, question No. 1 is answered in the negative.
(2) Does the evidence led in the trial establish that theappellant caused death or injury by driving the motorvehicle after the consumption of alcohol as contemplatedby section 151(1)B of the Motor Traffic Act?
Section 151(1) B of the Motor Traffic Act was introduced by theMotor Traffic (Amendment) Act, No. 31 of 1979, with theamendment to section 151. The said section 151(1)B reads asfollows:
“Any person who drives a motor vehicle on a highwayafter he has consumed alcohol or any drug and therebycauses death or injury to any person, shall be guilty of anoffence under this Act."
Prior to the amendment, which came into effect in 1979, theknown concept was on the basis of 'under the influence of liquor'and the original section 151(1) therefore read as follows:
“No person shall drive a motor vehicle on a highway whenhe is under the influence of alcohol or any drug".
The concept of driving after a person has 'consumed alcohol'therefore had been introduced by the amendment to the MotorTraffic Act in 1979.
Referring to section 151 (1 )B of the Motor Traffic (Amendment)Act of 1979, learned State Counsel for the respondent submittedthat the ingredients to be proved under the said section 151 (1 )Bwould consist of driving a motor vehicle, on a highway, afterconsumption of alcohol and causing death or injury to any personand that there is no added requirement to prove that the appellanthad acted negligently. The contention of the learned State Counselfor the respondent was that negligence was inherent on the factthat the appellant had consumed alcohol and driven a motorvehicle on the highway thereby causing the death of the deceased.
Considering the contention of the learned State Counsel for therespondent, the question that arises would be whether theingredients that has to be proved under section 151 (1 )B would belimited to the appellant having 'consumed alcohol, driving on thehighway and causing the death of the deceased'.
Nalinda Kumara v Officer-in-Charge Traffic Police Station Kandy and another
SC(Shirani Bandaranayake, J.)343
As stated earlier, section 151 (1)B introduced in terms of theamendment to the Motor Traffic Act in 1979, brought in the newconcept of driving a motor vehicle after a person had consumedalcohol.
Accordingly, when a person is charged under section 151(1)B, itwould be necessary to establish that the said person had beendriving the vehicle in question after he had consumed alcohol.
Would a mere statement to indicate that a person had'consumed alcohol’ be sufficient for this purpose? My answer to thisquestion is clearly in the negative for the reasons which could bederived from the rest of the provisions contained in section 151 ofthe Motor Traffic (Amendment) Act.
Section 151(1)C and its sub-sections clearly deal with thesituation dealt with in section 151(1)B regarding consumption ofalcohol by a person, who had been driving a motor vehicle. Section1 C(a) states that,
"Where a police officer suspects that the driver of a motorvehicle on a highway has consumed alcohol he may requiresuch person to submit himself immediately to a breath testfor alcohol and that person shall comply with suchrequirement."
Further section 1 C(c) provides for the officer to produce a driver,whom he suspects had consumed alcohol or any drug before aGovernment Medical Officer for examination.
Thus sections 1 C(a) and 1 C(c) clearly have made provisions forthe police officers either obtain a breath test or a medical report toascertain and establish that the driver, whom the police officersuspects, had consumed alcohol or any drug.
In order to facilitate the process of the aforementioned tests, theamendment had made provision to make Regulations and Section1D thus reads as follows:
"Regulations may be made prescribing –
the mode and manner in which the breath test foralcohol shall be conducted;
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the concentration of alcohol in a person's blood at orabove which a person shall be deemed to haveconsumed alcohol;
the mode and manner in which any examination maybe conducted to ascertain whether a driver of amotor vehicle had consumed any drug; and
the concentration of any drug in a person's blood ator above which a person shall be deemed to haveconsumed any drug.''
Such Regulations in terms of the Motor Traffic (Amendment)Act, were introduced under I.G.'s Circular No. 679/87 dated01.09.1987. The said Circular has clearly stipulated the need for abreath test and the concentration of alcohol in a person's blood thatis necessary to establish that the person in question has 'consumedalcohol'. The relevant Regulations are as follows:
"1.3 In terms of the amendment it is now an offence forany person to drive a motor vehicle on a highway"AFTER HE HAS CONSUMED ALCOHOL' or anydrug.
In terms of the regulations made by the Minister ofTransport under sections 151 and 237 of the MotorTraffic Act as amended by Act No. 31 of 1979 andAct No. 40 of 1984, a person is deemed 'TO HAVECONSUMED ALCOHOL' if the concentration ofalcohol of that person's blood is at or above 0.08grams of alcohol per 100 millilitres of blood (0.08grams = 80 milligrams).
The concentration of alcohol in a person's blood isdetermined by a breath test for alcohol carried outby a Police Officer by means of a device approvedfor that purpose by the Inspector-General of Police.
The device approved by the Inspector-General ofPolice for the purpose is the 'ALCOLYSER (Breath-alyzer) manufactured by Liens Laboratories of U.K."
Natinda Kumara v Officer-in-Charge Traffic Police Station Kandy and another
SC(Shirani Bandaranayake, J.)345
Thus it is evident that when a person is charged in terms ofsection 151 of the Motor Traffic (Amendment) Act for havingcommitted an offence under the said section having consumedalcohol, the prosecution has to prove that the said person had aminimum concentration of 0.08 grams of alcohol per 100 millilitresin his blood. If this cannot be proved it is evident that theprosecution had failed to establish an important ingredient of theoffence.
In this appeal the prosecution had failed to prove that theappellant had a minimum concentration of 0.08'grams of alcoholper 100 millilitres in his blood and therefore the appellant should beacquitted on count 2. Accordingly, I answer this question as well inthe negative.
As stated earlier the appellant was convicted on all seven (7)counts by the learned Magistrate and learned Judge of the HighCourt has set aside the conviction and sentence on counts 1 and
Out of the remaining counts 2, 3, 4, 6 and 7, for the reasonsaforementioned, I set aside the conviction and sentence on count 2and acquit the appellant on that count.
Since the appellant is acquitted on count 2, the order made bythe learned Judge of the High Court to cancel the driving licence ofthe appellant is set aside.
The appellant has not appealed against the judgment regardingcounts 3, 4, 6, and 7. Accordingly this appeal, which is onlyconfined to count 2, is allowed and to that extent the judgment ofthe High Court of the Central Province holden in Kandy dated
and the judgment of the Magistrate's Court, Kandydated 20.09.2004 are varied.
I make no order as to costs.
MARSOOF, J.-I agree.
SOMAWANSA, J.-I agree.
Appeal allowed-partly.