Breathalyser report alone cannot sustain drunkenness prosecution, Patna High Court quashes case

Four Bihar Police constables were apprehended while travelling in an Alto car in connection with Kotwali P.S. Case No. 398 of 2017, Bhagalpur, based principally on the results of breath-analyser tests.

The petitioners contended that the prosecution was motivated by personal hostility arising from an earlier dispute involving petitioner nos. 3 and 4 and the informant concerning the informant’s salary account.

They further alleged discrepancies between the time when the informant claimed to have reached the place of occurrence and the time recorded for the breath-analyser tests, as well as the absence of independent witnesses.

The police submitted a charge-sheet, and the Special Judge, Excise, Bhagalpur took cognizance under Section 37(b) of the Bihar Prohibition and Excise Act, 2016, by order dated 27 November 2017.

The petitioners sought quashing of the cognizance order, the FIR, and all consequential proceedings, arguing that no blood, urine, or other medical examination had been conducted.

Whether prosecution for an offence under Section 37(b) of the Bihar Prohibition and Excise Act, 2016 could be sustained solely on the basis of a breath-analyser report, without a blood, urine, or other medical report?

Whether the order dated 27 November 2017 taking cognizance against the petitioners, and the subsequent criminal proceedings, were liable to be quashed in the circumstances of the case?

The Court applied Section 37(b) of the Bihar Prohibition and Excise Act, 2016, which penalises a person who is found drunk or in a state of drunkenness at any place.

It considered Section 75(1), which authorises designated officers to require breath-analysis tests and/or medical tests, Section 75(2), which creates a presumption upon refusal to undergo such testing, and Section 75(3), which makes the test reports admissible in evidence.

The Court also noted the principle referred to in Bachubhai Hassanalli Karyani v. State of Maharashtra, 1971 (3) SCC 930, concerning the insufficiency of signs such as alcoholic breath, unsteady gait, or incoherent speech, though the operative reasoning rested on the interpretation of Section 75.

Although the statutory language uses “and/or,” the Court held that, given the stringent nature of criminal prosecution and the requirement of proof beyond reasonable doubt, the expression must effectively be understood as requiring both breath analysis and supporting medical evidence where guilt is sought to be established.

The Court held that Section 75 may permit initiation of proceedings on the basis of a breath-analysis test, but that a conviction for drunkenness requires evidence of sufficient reliability and quality.

In view of the penal consequences under Section 37(b), the Court interpreted “and/or” in Section 75(1) in a conjunctive manner, reasoning that a breath-analyser report alone could not ordinarily establish guilt beyond reasonable doubt without blood, urine, or another medical report.

In the present case, the FIR and prosecution were based solely on the breath-analysis reports and were unsupported by any other medical evidence.

The Court therefore found the prosecution legally unsustainable, without needing to rely independently on the alleged timing discrepancy, mala fides, or absence of independent witnesses.

It held that the prosecution under Section 37(b) of the Bihar Prohibition and Excise Act, 2016 could not be sustained solely on the basis of breath-analysis reports in the absence of blood, urine, or other medical evidence.

Accordingly, the order of cognizance dated 27 November 2017 and all subsequent criminal proceedings arising from Kotwali P.S. Case No. 398 of 2017 were quashed, and the criminal miscellaneous application was allowed.