Patna High Court – Orders
Anil Kumar Sinha vs The State Of Bihar Through The Principal … on 16 January, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1624 of 2022
Arising Out of PS. Case No.-725 Year-2021 Thana- KANTI District- Muzaffarpur
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Anil Kumar Sinha, Son of Rampdarath Sinha R/o Block Statics Officer,
Kanti, Muzaffarpur, Permanent R/v- Moregao, P.S.- Ghoshi, District-
Jehanabad
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Home,
Govt. of Bihar, Patna
2. The Director General of Police, Bihar, Patna
3. The Inspector General of Police, Bihar, Patna
4. The Deputy Inspector General of Police, Muzaffarpur Range, Muzaffarpur
5. The Superintendent of Police, Muzaffarpur at Muzaffarpur
6. The Deputy Superintendent of Police, Muzaffarpur, at Muzaffarpur
7. The S.H.O., Kanti Police Station, Muzaffarpur, at Muzaffarpur
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Sanjay Kumar Sharma, Advocate
For the Respondent/s : Mr. Suman Kumar Jha, AC to AAG-3
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL ORDER
8 16-01-2025
1. The petitioner has approached this Court under
Article 226 of the Constitution of India for the following
reliefs:-
(a) Issuance of writ in the nature of Certiorari for
Patna High Court CR. WJC No.1624 of 2022(8) dt.16-01-2025
2/9quashing the F.I.R. of Kanti P. S. Case No. 725 of 2021, dated
16.11.2021 for offence under Section 37(C) of the Bihar
Prohibition and Excise Act, 2016 against the petitioner and on
the same set of allegation a department inquiry was also
instituted at Collectorate Muzaffarpur in which petitioner was
exonerated from all allegations as alleged in the F.I.R.
(b) To grant such other relief / reliefs for which the
petitioner is entitled to.
2. The petitioner was booked for the offence under
Section 37(C) of the Bihar Prohibition and Excise Act, 2016 on
the allegation that he consumed liquor in violation of the said
Act. The Circle Inspector and the SHO, Kanti Police Station,
Muzaffarpur made a suo motu statement, alleging, inter alia,
that on 16th of November, 2021, he received an information that
some employees of the Block Office were engaged in mutual
strife and conflict under the influence of liquor. After getting the
said information, he reached the Block Office by his official
vehicle at about 04.20 p.m. and found one person in drunken
condition in Block Statistical Office. On being asked, he
disclosed his name as Anil Kumar Sinha, Block Statistical
Officer, Kanti, Muzaffarpur. He was smelling of alcohol when
he was talking. The informant arrested him and brought him to
Patna High Court CR. WJC No.1624 of 2022(8) dt.16-01-2025
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the Police Station. In the Police Station, he examined the said
person with the help of breath analyzer and found 289 mg. / 100
ml. alcohol in his smell. He was then sent to the local hospital
for medical examination. The informant then lodged a complaint
under Section 37(C) of the said Act, as a result of which, Kanti
P. S. Case No. 725 of 2021 was instituted.
3. It is also on record that over the self same incident,
a departmental enquiry was conducted by the Collector,
Muzaffarpur and the petitioner was exonerated from the
departmental charge of illegal consumption of alcohol.
4. The instant writ petition has been filed for quashing
the F.I.R., lodged against the petitioner by issuing a writ of
Certiorari.
5. Mr. Rajendra Narain, learned Sr. Advocate
appearing on behalf of the petitioner, at the outset, submits an
unreported decision passed by this Court in C.W.J.C. No. 2590
of 2022 (Manju Devi v. The State of Bihar through the
Additional Chief Secretary, Department of General
Administration, Government of Bihar, Patna & Ors.) decided on
19th of June, 2024.
6. In the said report, the Police Authority found the
accused consuming alcohol on the basis of breath analyzer
Patna High Court CR. WJC No.1624 of 2022(8) dt.16-01-2025
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report.
7. This Court relying on Bachubhai Hassanalli
Karyani v. State of Maharashtra, reported in (1971) 3 SCC
930, held that no conclusion with regard to consumption of
liquor by a person can be made on the fact that the person’s
breath was smelling of alcohol, that his gait was unsteady, that
his speech was incoherent and that his pupils were dilated.
Consumption of alcohol can only be ascertained by way of
blood and urine test of a person suspected to have consumed
alcohol.
8. It is further submitted by the learned Sr. Advocate
that the petitioner was sent to Block Health Centre for medical
examination. The Medical Officer reported that there was no
facility to check alcohol intake at CHC. The Medical Officer
was not, therefore, sure as to whether the petitioner consumed
alcohol or not.
9. The learned Sr. Advocate on behalf of the petitioner
next refers to the decision of Hon’ble Supreme Court in
Madhavrao Jiwaji Rao Scindia & Anr. v. Shambhajirao
Chandrojirao Angre & Ors., reported in 1988 AIR 709. It is
held in the said judgement that the legal position is well settled
when a prosecution at the initial stage is asked to be quashed.
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The test to be applied by the Court is as to whether the
uncontroverted allegation as made prima facie established the
offence. It is also for the Court to take into consideration any
special features which appear in a particular case to consider a
prosecution to continue. This is so on the basis that the Court
cannot be utilized for any oblique purpose and where in the
opinion of the Court chances of an ultimate conviction is bleak
and, therefore, no useful purpose is likely to be served by
allowing a criminal prosecution to continue. The Court may
while taking into consideration the special facts of a case also
quashed proceeding even though it may be at a preliminary
stage.
10. In the instant case, the learned Sr. Advocate has
raised the issue as to whether it is expedient and in the interest
of justice to permit a prosecution to continue.
11. The prosecution failed to produce any cogent
evidence admissible under the law on perusal of which the
Court can come to a conclusion finding that the petitioner had
consumed alcohol in violation of the Bihar Prohibition and
Excise Act, 2016. On the same ground, the petitioner was
exonerated from the departmental proceeding. Therefore, further
continuation of criminal proceeding would be unjust under the
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facts and circumstances of the case.
12. The learned Sr. Advocate for the
State/Respondents, on the other hand, submits that on the basis
of the judgement passed by the Hon’ble Supreme Court in
Bachubhai Hassanalli Karyani (supra), this Court cannot throw
away breath analyzer report as a proof of consumption of
alcohol because Section 75 of the Bihar Prohibition and Excise
Act, 2016 speaks of power to conduct breath analysis test and
medical tests. Section 75 of the Act runs thus:-
“75. Power to conduct breath
analysis tests and medical tests – (1) Any of the
Officers mentioned in Section 73 may ask any
person to undergo breath analysis test and / or
such medical tests as he may deem fit.
(2) The person so asked, is duty
bound to submit himself to such medical tests or
breath analysis test. Should he fails to do so, it
shall be presumed that he has committed an
offence under Section 37 of the Act and shall be
prosecuted accordingly.
(3) The reports of such tests shall be
admissible as evidence under the Indian
Evidence Act, 1872.”
13. The plain reading of Section 75 suggests that an
Officer named under Section 73 of the Act may ask any person
to undergo breath analysis test and/or such medical tests as he
Patna High Court CR. WJC No.1624 of 2022(8) dt.16-01-2025
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may deem fit. Sub-section (2) of Section 75 says that if the
suspect fails to commit himself to breath analysis test and/or
medical test, it shall be presumed that he has committed offence
under Section 37 of the Act. Sub-section 3 states that reports of
such tests shall be admissible as evidence under the Indian
Evidence Act.
14. Thus, it is contended on behalf of the State that
the Act does not preclude breath analysis test as means to
ascertain as to whether a person has consumed alcohol or not.
15. A close reading of the above-mentioned provision
suggests that Section 75 states breath analysis test “and/or”
medical test. The word “and/or” is of paramount importance. If
the above-mentioned provision is read as breath analysis test
and medical test report, then, both the reports are necessary for
holding a person guilty of consuming alcohol even prima facie.
If, on the other hand, “or” is read in isolation of “and” therefore
either of the report is sufficient to hold an accused guilty for
consuming alcohol. Where the Statute has provided both
conjunctive and disconjunctive propositions in between two
tests, in a criminal trail where proof beyond necessary doubt is
essential to be established, the provision is to be read
conjunctively and not in disconjunctive fashion.
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16. This problem may be necessary viewing the
problem in another angle. Sub-section 2 of Section 37 imposes
an element of reverse burden on the accused. It says that if the
accused fails to submit himself in breath analysis test and/or
medical test, the Court shall presume that he consumed alcohol
and, therefore, committed offence under Section 37 of the said
Act. It is now well established that even in case of “reverse
burden”, the prosecution is under obligation to proof the
foundational fact.
17. The decision of the Hon’ble Supreme Court in
case of Noor Aga v. State of Punjab & Anr., reported in (2008)
16 SCC 417, may be referred in support of my observation.
18. Thus, to proof foundational fact, the prosecution
is under obligation to produce both breath analysis report and
the medical report. In the absence of the medical report, the
prosecution cannot sustain.
19. In the instant case, the F.I.R. was based on breath
analysis report alone. The F.I.R. in the absence of medical report
is not sustainable.
20. For the reasons stated above, the instant writ
petition is allowed.
21. The F.I.R., bearing Kanti P. S. Case No. 725 of
Patna High Court CR. WJC No.1624 of 2022(8) dt.16-01-2025
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2021, dated 16.11.2021, instituted for the offence under Section
37(C) of the Bihar Prohibition and Excise Act, 2016, is quashed
and set aside.
(Bibek Chaudhuri, J)
skm/-
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