The Patna High Court has held that a prosecution for drunkenness under the Bihar Liquor Prohibition and Excise Act, 2016 cannot be sustained solely on the basis of a breath analyser report when it is not supported by a blood, urine or other medical examination report. The Court accordingly quashed the FIR, order taking cognizance and all subsequent criminal proceedings against four police constables.
Justice Sandeep Kumar was hearing a petition challenging the order dated November 27, 2017, by which the Special Judge, Excise, Bhagalpur had taken cognizance under Section 37(b) of the Bihar Liquor Prohibition and Excise Act in connection with a 2017 FIR.
According to the prosecution, the four petitioners were apprehended while travelling in an Alto car on the basis of the results of a breath analyser test conducted by the police. The petitioners, who were Bihar Police constables, disputed the prosecution and alleged that the case had been initiated due to personal grudge. They also pointed to discrepancies in the timing of the alleged occurrence and the breath analyser test, as well as the absence of independent witnesses.
The petitioners further relied on Section 75 of the Act, contending that the failure to conduct blood and urine tests along with the breath analysis rendered the prosecution unsustainable. Reliance was also placed on the Supreme Court’s decision in Bachubhai Hassanalli Karyani v. State of Maharashtra (1971) 3 SCC 930, wherein it was submitted that consumption of alcohol could not be concluded merely from symptoms such as the smell of alcohol, unsteady gait or incoherent speech and that blood and urine examination was required.
The State, however, argued that Section 75 expressly permits a breath analysis test and/or medical test and that the breath analysis report was sufficient to establish that the petitioners were intoxicated.
The Court examined Sections 37(b) and 75 of the Act. While Section 75(1) permits an authorised officer to require a person to undergo a breath analysis test and/or medical test, the Court emphasised the standard applicable in a criminal prosecution, observing that courts must exercise caution and that guilt has to be established beyond reasonable doubtthrough evidence of sterling quality.
Interpreting the expression “and/or” in Section 75(1), the Court held that, in the context of criminal prosecution, it would essentially mean “and”. The Court observed that there could not be a disjunction whereby either a breath analysis report or a blood and urine examination report alone would suffice to establish guilt.
Accordingly, the Court held that in the absence of a blood, urine or other medical report, a prosecution could not be sustained merely on the basis of a breath analyser report. Since the FIR in the present case was based solely on the breath analysis report and was unsupported by any other medical evidence, the Court found that it could not be sustained.
The High Court consequently quashed the order taking cognizance dated November 27, 2017, along with all subsequent criminal proceedings arising from the case and allowed the petition.
