Om Prakash vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13649 of 2025
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Om Prakash Son of Ram Uchit, Resident of village- navratanpur, Bari
Khagaul, P.S.-Khagaul, District- Patna
... ... Petitioner/s
Versus
1. The State of Bihar through the Home Secretary, Bihar, Patna.
2. The Director General-Cum-Inspector General of Police, Bihar, Patna
3. The Deputy Inspector General of Police, Munger Range, Munger
4. The Superintendent of Police, Munger.
5. The Deputy Superintendent of Police Cum- Enquiry officer, Munger
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Upendra Mishra, Adv.
Mr.Bhaskar Sandilya, Adv.
Mr.Ravi Kumar, Adv.
For the Respondent/s : Mr.Subhash Pd. Singh, GA3
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 07-07-2026
Heard Learned Counsel for the petitioner and
Learned Counsel for the State.
2. The present writ petition has been filed with the
following reliefs:-
i. For quashing the finding of enquiry
officer dated 11.12.2024, arising out of Munger
District Departmental Proceeding No. 11 /2021.
ii. For quashing the punishment order
dated 12.04.2025 passed by the Superintendent of
Police, Munger.
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iii. For quashing the appellate order
dated 09.07.2025, passed by the Deputy Inspector
General of Police, Munger Reng, Munger.
iv. For issuance of an appropriate writ in
the nature of mandamus commanding and directing
the respondent authorities to reinstate the
petitioner in service from the date of suspension i.e.
15.05.2021 with all consequential monetary
benefit.
V. For issuance of any other relief /
reliefs for which the petitioner may be found
entitled to.
3. Learned counsel for the petitioner submits that it is
a second round of litigation. He further submits that the
petitioner has been punished in a departmental proceeding vide
order dated 21.11.2021 passed by the DIG in Departmental
proceeding Case No.11 of 2021.
4. Counsel further submits that being aggrieved and
dissatisfied by the order dated 21.11.2021, the petitioner has
preferred appeal before the DGP, which was heard by the
Additional Director General of Police, who had pleased to pass
final order in his favour vide letter No.65/2022/181 dated
14.09.2022 in which he has been exonerated. He further submits
that order passed in the departmental proceeding was set aside
vide Memo No.1547/C dated 13.11.2021 passed by the DIG,
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Munger in departmental proceeding No.11 of 2021 has been set
aside.
5. Counsel further submits that after setting aside the
said order, it was directed by the Appellate Authority to conduct
the departmental proceeding in accordance with Rule 17 & 18
of the Bihar Government Servants (Classification, Control &
Appeal) Rules, 2005 within a fixed time frame. In compliance
of the appellate order, the Superintendent of Police, Munger has
passed order contained in Memo No.3907 dated 13.10.2022 by
which a fresh charge memo has been framed against him vide
order dated 14.11.2022 contained in Memo No.4289 dated
14.11.2022. He further submits that the petitioner has
participated in the fresh inquiry proceeding. The copy of the
inquiry proceeding has been provided to him contained in
Memo No.5095 dated 11.12.2024.
6. Counsel further submits that after analysis made by
the Inquiry Officer, it has been found that neither blood nor
urine of the petitioner has been tested and on the basis of which,
he could not be held guilty, but in the second last paragraph of
inquiry report, he has found the petitioner guilty of the charge
on two grounds that Police case under Section 35(B) /37(C) of
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the Bihar Excise Act with amendment of 2018 has been filed on
the basis of breath analyzer report and subsequently, the then
DSP, Headquarter, Munger has directed to conduct the
proceeding on the basis of inquiry. On these two grounds, the
petitioner was found guilty of the charges alleged against him.
He further submits that the second show-cause has been
demanded by the petitioner.
7. Counsel further submits that the Disciplinary
Authority has not considered his second show-cause at all and
observed only one line statement that the second show-cause
has been found unsatisfactory, and therefore, the finding of the
Inquiry Officer has been accepted. He has been punished by
deduction of 3 years of increment, which is equivalent to three
black marks. He further submits that the said order passed by
the Disciplinary Authority has been challenged before the
Appellate Authority and the Appellate Authority has rejected the
appeal on another ground that in Bihar, there is a complete
prohibition of wine and being in contact of criminals who used
to keep, sell, drink and provide wine, is wrong and illegal. It has
also been observed by the Appellate Authority that the
delinquent is a Police Officer and on him, there is great
responsibility for prohibiting the wine. The delinquent as well as
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his entire family members have taken oath for not consuming
alcohol. But in addition to that, his conduct is against the dream
project of the State and by his action, the image of the police
personnel has diminished. The affect has also been against other
Police officials. In this regard, it is due to this reason, the appeal
is not entertainable, and hence, he refused to interfere in the
order passed by the Disciplinary Authority.
8. Counsel further submits that by the writ petition,
the petitioner has challenged the inquiry report dated
11.12.2024, arising out of Munger District Departmental
Proceeding No. 11 /2021 (Annexure-P/7), the punishment order
dated 12.04.2025 passed by the Superintendent of Police,
Munger (Annexure-P/10) and the appellate order dated
09.07.2025, passed by the Deputy Inspector General of Police,
Munger Reng, Munger (Annexure-P/12)
9. Counsel further relied on a judgment passed by this
Hon’ble Court in case of Abhay Kumar Singh Vs. The State
of Bihar & Ors. decided on 02.04.2026 in CWJC No.5460 of
2025 . He further submits that upon considering various
judgments of the Hon’ble Supreme Court of India and Hon’ble
High Court, it has been hold that the breath analyzer report is
not a conclusive proof of consuming the liquor by a person and
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consumption of alcohol can only be ascertained by way of blood
and urine test of a person, suspected to have consumed alcohol.
He further submits that admittedly, in the inquiry report, it has
come that neither urine test nor the blood test of the
delinquent/petitioner has been taken place and therefore, he
submits that the finding of the Inquiry Officer, Disciplinary
Authority and the Appellate Authority are not sustainable in the
eye of law and in this view of the matter, the writ petition may
be allowed.
10. Learned counsel for the State, on the other hand,
submits that the scope of the petitioner is very limited. In the
present case, neither there is violation of natural justice nor
there is any procedural irregularities nor punishment exorbitant.
He further submits that there is concurrent finding of the fact,
therefore, there is no need of any interference.
11. However, he submits that the observation made by
the Appellate Authority is absolutely right that being a
responsible person, he must not ought to do such things which
create shadow on the image of the police. He further submits
that it is the doctor report on the basis of which it has come that
consumption of alcohol has been found in the breath analyzer
report.
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12. After hearing the parties and on the basis of ratio
laid down in the case of Abhay Kumar Singh (Supra) (CWJC
No.5460 of 2025), it is necessary to quote the relevant
paragraph Nos.7, 8 and 9 which state as follows:-
7. Upon perusal of the documents on
record and the judgment passed by this Hon'ble
Court in case of Dharmraj Singh @ Dhamraj
Singh (supra), the relevant conclusive para 12 to
17 reads as under:-
"12. Having heard the learned counsels
for the parties and on careful perusal of the
materials on record, I am surprised to note that the
petitioner was arrested on the allegation that he
consumed alcohol on 16th of January, 2020 from
Barrack No. 3 of Reserve Police Line, Motihari. It
is presumed that in Barrack No. 3, there were other
personnel sleeping at that point of time. The
arresting officer did not get the petitioner
superficially examined by other inmates of Barrack
No. 3 to ascertain as to whether smell of alcohol
was coming from the mouth or not.
13. It is needless to say that breath
analyzer report is not a conclusive proof of
consuming the liquor by a person in Bachubhai
Hassanalli Karyani vs. State of Maharashtra
reported in (1971) 3 SCC 930. 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 appellants 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.
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14. The Hon'ble Supreme Court found
that the blood and urine examination of the
appellant was not done and finally held that the
mere smelling of alcohol is not enough to hold that
the petitioner consumed alcohol on the date of his
apprehension i.e., on 16th of January, 2020.
15. Thus, this Court holds that breath
analyzer report is not a conclusive proof of
consumption of alcohol by the petitioner.
16. The disciplinary authority as well as
the appellate authority failed to consider such
aspect of the matter and the impugned order of
dismissal of the petitioner suffers from manifest
arbitrariness. The order of dismissal is an instance
of violation of natural justice because of non-
consideration of medical documents filed by the
petitioner at the time of departmental inquiry.
17. For the reasons stated above, this
Court is of the view that the order of dismissal,
passed by the Deputy Inspector of Police,
Champaran Range, Bettiah, dated 2nd of July,
2020; the order of the Additional Director General
of Police, Bihar, Patna, dated 30th of September,
2020, affirming the order of dismissal; and order,
dated 29th of June, 2021 passed by the Director
General, Bihar, Patna, dismissing the memorial
appeal of the petitioner, are quashed and set
aside."
7.1. Subsequently, the order passed by
the Hon'ble Division Bench of this Court in L.P.A.
No. 1095 of 2024 decided on 26.02.2026, the
relevant para 4 to 8 reads as under:-
"4. The learned Single Judge while
allowing the writ petition held that proper
procedure was not followed by the appellant-
authorities, and only on basis of the fact that the
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petitioner's breath smelled like alcohol, action was
taken against the petitioner. The relevant
paragraphs of the impugned judgment are
reproduced as under:
"8. Having heard the learned counsels
for the parties and on careful perusal of the
materials on record, I am surprised to note that the
petitioner was arrested on the allegation that he
consumed alcohol in the night of 31.12.2019 and
thereafter only on the basis of the report of doctor,
and that too by Breath Analyzer, a case was
registered against the petitioner, without examining
his blood and urine.
9. It is needless to say that Breath
Analyzer report is not a conclusive proof of
consuming the liquor by a person in Bachubhai
Hassanalli Karyani vs. State of Maharashtra,
reported in (1971) 3 SCC 930. The Hon'ble
Supreme Court held that no to conclusion with
regard consumption of alcohol by a person can be
made on the facts that the appellant'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.
10. The Hon'ble Supreme Court found
that the blood and urine examination of the
appellant was not done and finally held that the
mere smelling of alcohol is not enough to hold that
the petitioner consumed alcohol on the date of his
apprehension.
11. Thus, this Court holds that Breath
Analyzer report is not a conclusive proof of
consumption of alcohol by the petitioner.
12. The disciplinary authority as well as
the appellate authority failed to consider such
aspect of the matter and the impugned order of
dismissal of the petitioner suffers from manifest
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arbitrariness. The order of dismissal is an instance
of violation of natural justice because of non-
consideration of medical documents filed by the
petitioner at the time of departmental inquiry."
5. Learned counsel for the appellants
submits that the learned Single Judge did not
consider the fact that due procedure had been
followed in the present matter, and the order of
dismissal was passed in accordance with law. The
respondent having been found in violation of
departmental rules and regulations was dismissed
from the service. Learned counsel further submits
that the application of Bachubhai Hassanalli
Karyani v. State of Maharashtra reported in (1971)
3 SCC 930 is unwarranted in the case. Bachubhai
Hassanalli present Karyani (supra) is related to
proving the guilt of an accused in a criminal trial,
and the facts therein can be distinguished from the
present case. In a criminal trial the guilt of the
accused has to be proved beyond reasonable
doubts, whereas, disciplinary proceedings are
conducted on the basis of preponderance of
probabilities.
6. Learned counsel for the respondent
submits that the learned Single Judge passed the
impugned order after careful consideration of
materials available on record, and is well founded
and supported by reason. Therefore, the order of
the learned Single Judge requires no interference
by this court.
7. On perusal of materials on record,
and the submissions advanced by the parties, it is
evident that a major punishment was imposed on
the respondent based on the allegation that he had
consumed alcohol, and was found in an intoxicated
state. The allegation was supported only by report
of a doctor on the basis of breathalyzer test. It is
also not disputed that no blood or urine test of the
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petitioner was conducted, which could conclusively
show the consumption of alcohol, if any.
8. Further, appellants have been unable
to show that how Bachubhai Hassanalli Karyani
(supra) does not find any application in the present
case. The Hon'ble Supreme Court, has clearly laid
down in Bachubhai Hassanalli Karyani (supra)
that drunkenness cannot be said to be conclusively
proved unless urine or blood test is carried out.
The relevant paragraphs of the said judgment are
reproduced as under:
"4. The doctor had admitted that a
person, placed in the circumstances in which the
appellant was put as a result of the accident, would
be under a nervous strain and his gait might be
unsteady. The doctor had also admitted that a
person could smell of alcohol without being under
the influence of drinking. No urine test of the
appellant was carried out and although the blood
of the appellant was sent for chemical analysis, no
report of the analysis was produced by the
prosecution.
5. It seems to us that on this evidence it
cannot be definitely held that the appellant was
drunk at the time the accident occurred."
7.2. Another judgment passed by this
Hon'ble Court in case of Manoj Kumar Thakur Vs.
The State of Bihar & Ors passed in C.W.J.C. No.
4181 of 2021, decided on 25.06.2025, its relevant
para 4 & 5 reads as under:-
"4. While assailing the orders impugned,
learned Advocate for the petitioner contended that
the entire allegation against the petitioner rest
upon a Breath Analyser Test, based upon which it
is alleged that the petitioner was found under
influence of liquor while creating ruckus at Gate
No. 2. However, the Breath Analyser Test cannot be
said to be conclusive proof of consumption of
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alcohol in absence of any urine and blood test. The
above mentioned issue was the subject for
consideration in the case of Manju Devi vs. The
State of Bihar & Ors. [CWJC No. 2590 of 2022],
wherein a Bench of this Court placing reliance
upon the decision in Bachubhai Hassanalli
Karyani vs. State of Maharashtra [(1971) 3 SCC
930] recorded the observation of the Apex Court
that 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 and speech was
incoherent and that his pupils were dilated. The
consumption of alcohol can only be ascertained by
way of blood and urine test by a person suspected
to have consumed alcohol.
5. It is the specific contention of the
petitioner that the petitioner had never been
subjected to any blood and urine test, hence Breath
Analyser report alone could not be an admissible
evidence to return the finding that the petitioner
was found in an inebriated condition or in the
influence of liquor. It is further contended that in
identical facts the coordinate Bench of this Court
in the case of Manju Devi (supra) has set aside the
order of dismissal which was passed only upon the
finding of the Enquiry Officer that the delinquent
was found under the influence of alcohol on the
basis of the Breath Analyser Test. Reliance has
also been placed on a judgment rendered by the
Apex Court in the case of Munna Lal vs. Union of
India & Ors. [(2010) 15 SCC 399] as also the
decision rendered by this Court in the case of
Jawahar Kumar Singh vs. The State of Bihar &
Ors. [2019(2) PLJR 156]."
8. It transpires to this Court that the
finding of consumption of alcohol as consistently
decided by this Court as well as approved by the
Hon'ble Division Bench and on the basis of
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judgment of Hon'ble Supreme Court, it has been
held that the breath analyzer report is not a
conclusive proof of consuming the liquor by a
person and consumption of alcohol can only be
ascertained by way of blood and urine test of a
person, suspected to have consumed alcohol.
9. This Court reached on the conclusion
that the enquiry report furnished by the Enquiry
Officer, the decisions of the Disciplinary Authority
as well as the Appellate Authority, have been
passed without application of mind to the defence
taken by the petitioner as required under Rule
17(14) of the Bihar CCA Rules, 2005 and there is
non-consideration of ratio laid down in the
judgments discussed above and subsequently, the
Appellate Authority has also failed to discharge his
obligation at the time of passing the order in
appeal.
13. This Court put concentration that whether the
report of the breath analyzer test is a conclusive proof of
consuming liquor or not? In this regard, the ratio laid down by
the Hon’ble Supreme Court of India and Hon’ble High Court
about which detail discussions have been made in CWJC
No.5460 of 2025 is binding upon all parties.
14. It transpires to this Court that on consumption of
alcohol, there is no specific finding of the Inquiry Officer.
Whereas in the charge-memo, there is specific allegation of
consumption of alcohol. He has found the petitioner guilty
which is wrong. It also transpires that the Disciplinary Authority
at the time of passing order in the departmental proceeding, has
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only made one line statement that the explanation filed by the
petitioner is not satisfactory. The another surprising issue in the
appellate order that the Appellate Authority has given his
finding and affirmed his order on the basis of allegation, which
are not part and parcel of the charge-memo whereas Rule 17 &
18 of the Bihar CCA Rules, 2005 is very clear that the
Disciplinary Authority has to consider the explanation/second
show-cause and to pass order.
15. Here in the present case, the explanation has not
been considered at all by the Disciplinary Authority. As such,
this Court is of the opinion upon going through the order of both
Original and Appellate Authority that charges have been framed
something different, but finding of the authorities are based on
different points, which have not been raised in the charge-
memo. In result, this Court finds on the basis of materials
available, the finding of inquiry officer dated 11.12.2024,
arising out of Munger District Departmental Proceeding No. 11 /
2021 (Annexure-P/7), the punishment order dated 12.04.2025
passed by the Superintendent of Police, Munger (Annexure-
P/10) and the appellate order dated 09.07.2025, passed by the
Deputy Inspector General of Police, Munger Reng, Munger
(Annexure-P/12) are hereby set aside.
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16. With the aforesaid directions and observations,
the present writ application stands allowed.
(Dr. Anshuman, J)
Prakashmani/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 10/07/2026
Transmission Date N/A