Madhukar Suman and Ors vs State Of Bihar and Anr

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.1615 of 2018
Arising Out of PS. Case No.-398 Year-2017 Thana- BHAGALPUR KOTWALI District-
Bhagalpur
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1. Madhukar Suman S/o Sri Arvind Kumar Singh, R/o Village- Bairan, P.O.-
Kadhar, P.S.- Kauakol, District- Nawada Bihar.
2. Raubin Kumar Pandey S/o Sri Omkar Nath Pandey, R/o Village-Kushhar,
P.O.- Kushhar, P.S.- Turkauliya, District- East Champaran Bihar.
3. Rajeev Ranjan S/o Late Rameshwar Prasad, R/o Village- Khedan Bigha,
P.O.- Islampur, P.S.- Islampur, District- Nalanda Bihar.
4. Shashi Kant Sharma S/o Late Satya Narayan Sharma, R/o Village- Darihat,
P.O. and P.S.- Darihat, District- Rohtas Bihar.
... ... Petitioner/s
Versus
1. State Of Bihar
2. Pankaj Kumar Singh S/o Devendra Singh, R/o Village- Majaur, P.S.- Jamul,
District- Jamui Bihar At Present Posted as Officer In Charge, Kotwali P.S.,
Bhagalpur, District- Bhagalpur Bihar.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.Raju Giri, Advocate
For the Opposite Party/s : Mr.Sri Jharkhandi Upadhyay, APP
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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 10-09-2026
Heard learned counsel for the petitioners and learned
counsel for the State.
2. This application has been filed on behalf of the
petitioners for setting aside/quashing the order of cognizance
dated 27.11.2017 by which the learned Special Judge, Excise,
Bhagalpur took cognizance under Section 37(B) of the Bihar
Liquor Prohibition and Excise Act, 2016 against the petitioners
in connection with Kotwali P.S. Case No. 398/2017.

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3. As per the prosecution case, four accused persons
were apprehended by the police while travelling in an Alto car,
on the basis of the results of a breath analyser test conducted by
the police.
4. Learned counsel for the petitioner submits that the
petitioners are constable of the Bihar Police. Petitioner nos. 1
and 2 are posted in Police Line Bhagalpur and petitioner nos. 3
and 4 were posted in Accounts Section of the Office of the
Senior Superintendent of Police, Bhagalpur.
5. Learned counsel for the petitioners submits that the
present case has been instituted mala fide and out of personal
grudge. Petitioner Nos. 3 and 4 were posted in the Accounts
Section of the Office of the Senior Superintendent of Police,
Bhagalpur. The informant had an altercation with them
regarding his salary account and as they refused to extend any
undue favour, they have been falsely implicated in the present
case.
6. It is further submitted that there is a serious
discrepancy regarding the timing of the alleged occurrence and
the Breath Analyser test. The informant stated that he reached
the place of occurrence at 01:10 P.M., whereas the Breath
Analyser Report shows that the test was conducted between

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12:30 P.M. and 12:45 P.M. Thus, the test appears to have been
conducted even before the informant allegedly reached the place
of occurrence. The subsequent explanation given by the Officer-
in-Charge regarding the timing appears to be an afterthought
and creates serious doubt about the prosecution case.
7. Learned counsel further submits that there is no
independent witness to support the prosecution case and all the
witnesses are police personnel. Despite the absence of reliable
material against the petitioners, the police submitted charge-
sheet and the learned Special Judge, Excise, Bhagalpur,
mechanically took cognizance by order dated 27.11.2017. It is,
therefore, submitted that the impugned order is unsustainable in
law and is liable to be set aside.
8. Learned counsel further submits that moreover
under Section 75 of the Act, the failure of the police to collect
blood and urine test along with breath analysis test would render
the whole prosecution impermissible. Learned counsel further
submitted that there are a number of decisions of learned Co-
ordinate Benches of this Court wherein the prosecution/FIR
have been quashed which was based on only the breath analyzer
test and referred to the decisions of this Court in the case of
Anil Kumar Sinha Vs. The State of Bihar & ors. passed in

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Cr.W.J.C. No. 1624 of 2022, Narendra Kumar Vs. The State of
Bihar & ors. passed in Cr.W.J.C. No. 1430 of 2024 and Manju
Devi Vs. The State of Bihar & ors. passed in C.W.J.C. No 2590
of 2022 .
9. Learned counsel further submits that a
supplementary affidavit has been filed in which he has referred
to the case of Bachubhai Hassanalli Karyani Vs. State of
Maharashtra , reported in 1971(3) SCC 930 wherein the
Hon’ble Supreme Court held that no conclusion with regard to
consumption of alcohol by a person can be made on the facts
that the persons breathe was smelling of alcohol, that his gait
was unsteady, that his speech was incoherent and that his pupils
were dilated. The Hon’ble Supreme Court categorically held
that consumption of alcohol can only be ascertained by way of
blood and urine test of a person suspected to have consumed
alcohol.
10. Learned counsel submits that in the given facts
and circumstances, the present prosecution has been brought
into existence in an arbitrary and whimsical manner and if the
present prosecution is allowed to be continued against the
petitioner, the same would be an abuse of process of law and
hence, the FIR of Kotwali P.S. Case No. 398 of 2017 needs to

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be quashed along with subsequent proceeding.
11. Learned counsel for the State-respondents
vehemently contends that there is no merit in the present
petition and the same be dismissed. The learned counsel submits
that Section 75 of the Act provides for conduct of breath
analysis test and medical test and the Act specifically provides
for breath analysis test as a means to ascertain whether a person
has consumed alcohol or not. After investigation the police
submitted charge sheet finding the allegation against the
petitioner to be true. If the allegation was substantiated by
breath analysis test, the petitioner was in intoxicated state and
therefore, he has committed an offence under the provisions of
the Excise Act.
12. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
13. Section 37(b) of the Excise Act reads as under:-
“ 37. Penalty for consumption of liquor.
………………
b)is found drunk or in a state of drunkenness at any
place;…..”
Now, Section 75 of the same Act reads as under:-
“75. Power to conduct breath analysis tests
and medical tests.
(1)Any of the Officers mentioned in Section- 73

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may ask any person to undergo breath analysis
tests 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
tests. 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 evidences under the Indian Evidence Act,
1872.”
Prima facie it appears prosecution could be initiated
merely on the basis of breath analysis test as Section 75(1)
mentions an officer can direct a person to undergo breath
analyzer test and/or such medical test as he may deem fit.
However, considering the stringency of the criminal
prosecution, law expects the Courts to err on the side of caution.
For holding a person guilty in a criminal trial, he is required to
be so proved beyond reasonable doubt and for this reason, the
prosecution is required to bring on record the evidence with
sterling qualities. Therefore “and/or” used in Section 75(1)
would essentially mean “and”. There could not be any dis-
conjunction so as to infer that either the breath analysis report or
the blood and urine examination report will suffice for holding a
person guilty. Therefore in the absence of report of blood/urine
or any other medical report, the prosecution could not be

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sustained merely on the basis of breath analysis test report.
14. In the present case, the prosecution was initiated
by lodging the FIR which was based solely on the report of
breath analysis of the petitioners and is not supported with any
other medical report and hence, the FIR could not be sustained.
15. Therefore, the order of cognizance dated
27.11.2017 by which the learned Special Judge, Excise,
Bhagalpur took cognizance under Section 37(B) of the Bihar
Liquor Prohibition and Excise Act, 2016 against the petitioners
in connection with Kotwali P.S. Case No. 398/2017 and all
subsequent criminal proceeding against the petitioners are
quashed.
16. Accordingly, this application stands allowed.

(Sandeep Kumar, J)
tusharika/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 17.09.2026
Transmission Date 17.09.2026