Breathe Analyzer Report Is Not A Conclusive Proof Of Liquor Consumption By A Person: Patna High Court
The Patna High Court observed that the breathe analyzer report is not conclusive proof of consuming liquor.
The Court held thus while setting aside the order of dismissal against a person who was arrested for alleged violation of Bihar Prohibition and Excise Act, 2016. It was hearing a Writ Petition seeking a Writ of Certiorari setting aside the order that rejected the service appeal of the petitioner filed against the order of punishment.
The bench of Justice Bibek Chaudhuri observed, “…this Court likes to record that breathe analyzer report is not a conclusive proof of consuming liquor by a person.”
Advocate Pramod Mishra appeared for the Appellant and State Counsel M.N.H. Khan appeared for the respondent.
Brief Facts-
The original petitioner, deceased Prabhakar Kumar Singh posted at the S.D.O. office was arrested for allegedly violating the Bihar Prohibition and Excise Act, 2016. He was suspended after being in custody for over 48 hours. He was released on bail and his suspension was revoked, but a departmental and criminal proceeding followed for alleged alcohol consumption. He challenged his dismissal, arguing no scientific tests confirmed alcohol use and that his defence of consuming cough syrup due to illness was ignored. He claimed that the dismissal based solely on a breathanalyser test was unfair.
The Court mentioned the decision of the Supreme Court in Bachubhai Hassanalli Karyani Vrs. State of Maharashtra reported in 1971 (3) SCC 930 and according to the Court, the SC held, “no conclusion with regard to consumption of alcohol by a person can be made on the facts that the appellant’s breathe 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 by a person suspected to have consumed alcohol.”
The Court further noted that the Supreme Court held that the mere smell of alcohol is not enough to hold that the person consumed alcohol on the date of his apprehension.
The Court said that in the present case, the disciplinary authority failed to consider the observation of the Supreme Court and based his order of punishment on the original petitioner's breath analyzer report which cannot be said to be a conclusive report of consumption of alcohol.
The bench refused to uphold the impugned order against the original petitioner. Accordingly, quashed and set aside the orders.
Finally, the Court allowed the Writ Petition.
Cause Title: Manju Devi v. The State of Bihar
Appearance:
Adv. Pramod Mishra, SC M. N.H. Khan and AC to SC Fazle Karim, AC to SC-1