Case Background
The case arose from Kotwali P.S. Case No. 398 of 2017 in Bhagalpur. According to the prosecution, four accused persons were apprehended by the police while travelling in an Alto car.
The police conducted a breath analyser test on them. Based on the result of this test, the case was registered under the Bihar Liquor Prohibition and Excise Act, 2016.
After investigation, the police submitted a charge-sheet. On 27.11.2017, the learned Special Judge, Excise, Bhagalpur took cognizance against all four accused under Section 37(b) of the Act.
The four accused, who are constables in the Bihar Police, then approached the Patna High Court by filing Criminal Miscellaneous No. 1615 of 2018. They sought quashing of the cognizance order and the entire criminal proceedings.
What the Court Examined and Decided
The petitioners were serving constables of the Bihar Police. Petitioner Nos. 1 and 2 were posted in Police Line, Bhagalpur. Petitioner Nos. 3 and 4 were posted in the Accounts Section of the Office of the Senior Superintendent of Police, Bhagalpur.
The petitioners argued that the case was mala fide and born out of personal grudge. They stated that petitioner Nos. 3 and 4, working in the accounts section, had an altercation with the informant regarding his salary account. Because they refused to extend any undue favour, they claimed they were falsely implicated.
The petitioners also pointed to a serious discrepancy in timing. The informant stated that he reached the place of occurrence at 01:10 P.M. However, the breath analyser report showed that the test was conducted earlier, between 12:30 P.M. and 12:45 P.M.
According to them, this meant the breath test seemed to have been done even before the informant reached the spot. They said the later explanation given by the Officer-in-Charge about this timing mismatch was an afterthought, creating serious doubt about the prosecution story.
Another important argument was about evidence. The petitioners pointed out that there was no independent public witness. All the witnesses were police personnel. Despite such weak material, the police still submitted a charge-sheet and the Special Judge, Excise, took cognizance.
The petitioners contended that the Special Judge acted mechanically, without properly examining whether there was enough legal material to proceed. Therefore, the cognizance order dated 27.11.2017 was said to be unsustainable in law.
A central plank of the petitioners’ case was Section 75 of the Bihar Liquor Prohibition and Excise Act, 2016. They argued that the failure of the police to collect blood and urine samples along with the breath analyser test made the whole prosecution impermissible.
Counsel for the petitioners referred to several decisions of co-ordinate Benches of the Patna High Court. In those cases, FIRs or prosecutions based only on breath analyser tests had been quashed. The cited cases were Anil Kumar Sinha Vs. The State of Bihar & ors. (Cr.W.J.C. No. 1624 of 2022), Narendra Kumar Vs. The State of Bihar & ors. (Cr.W.J.C. No. 1430 of 2024), and Manju Devi Vs. The State of Bihar & ors. (C.W.J.C. No. 2590 of 2022).
Through a supplementary affidavit, the petitioners also relied on the Supreme Court’s decision in Bachubhai Hassanalli Karyani Vs. State of Maharashtra, reported in 1971(3) SCC 930. In that case, the Supreme Court held that merely smelling alcohol on a person’s breath, observing unsteady gait, incoherent speech, or dilated pupils was not enough to conclude alcohol consumption. Proper conclusion required blood and urine tests.
Using this precedent, the petitioners argued that, similarly, in their case, only a breath analyser report had been used, without any blood or urine test. Therefore, there was no reliable evidence to prove that they had consumed liquor.
They submitted that allowing such a prosecution to continue would be arbitrary and whimsical, and would amount to abuse of the process of law. Hence, they requested the Patna High Court to quash the FIR and all subsequent proceedings.
On the other side, learned counsel for the State opposed the petition and defended the prosecution. The State argued that Section 75 of the Act itself provided for breath analysis tests and medical tests.
According to the State, the law clearly recognised breath analysis as a valid means to determine whether a person had consumed alcohol. After investigation, the police had found the allegations against the petitioners to be true and had filed a charge-sheet.
The State submitted that since the breath analysis test showed intoxication, the petitioners had committed an offence under the provisions of the Excise Act. On this basis, it was argued that the petition had no merit and should be dismissed.
Justice Sandeep Kumar of the Patna High Court considered the rival submissions and examined the relevant legal provisions. He referred first to Section 37(b) of the Bihar Liquor Prohibition and Excise Act, which provides a penalty where a person “is found drunk or in a state of drunkenness at any place.”
He then turned to Section 75, which deals with “Power to conduct breath analysis tests and medical tests.” Section 75(1) allows specified officers to ask any person to undergo breath analysis tests and/or such medical tests as the officer may deem fit. Section 75(2) makes it a duty for the person to submit to such tests, and provides that if he fails, it shall be presumed that he has committed an offence under Section 37. Section 75(3) states that the reports of such tests shall be admissible as evidence under the Indian Evidence Act, 1872.
The Court observed that, on a plain reading, it may appear that prosecution could be initiated merely on the basis of a breath analysis test. However, the Court stressed that, given the stringency of criminal prosecution, law expects courts to err on the side of caution.
For a person to be held guilty in a criminal trial, the charge has to be proved beyond reasonable doubt. This requires the prosecution to place before the court evidence of “sterling qualities”.
In this context, the Court interpreted the words “and/or” used in Section 75(1). The Court held that “and/or” must essentially be read as “and”. There could not be any dis-junction to suggest that either only a breath analysis report or only a blood and urine examination report would alone suffice to hold a person guilty.
The Court thus ruled that, for a sustainable prosecution, there must be not just a breath analysis report but also blood/urine or other medical reports. In the absence of such additional medical evidence, prosecution could not be sustained merely on the basis of a breath analysis report.
Applying this reasoning to the present facts, the Court noted that the FIR and the prosecution were founded solely on the breath analysis report of the petitioners. There was no supporting blood, urine or other medical report on record.
Because of this, the Court held that the FIR itself could not be sustained. Once the very foundation of the case failed, the consequent cognizance order and further criminal proceedings also could not stand.
Accordingly, the Patna High Court quashed the cognizance order dated 27.11.2017 passed by the learned Special Judge, Excise, Bhagalpur in Kotwali P.S. Case No. 398 of 2017. All subsequent criminal proceedings against the petitioners were also quashed. The criminal miscellaneous application was allowed.
Why This Judgment Matters
This judgment is important for people booked under the Bihar Liquor Prohibition and Excise Act, 2016, especially for offences of alleged alcohol consumption.
The Patna High Court has made it clear that a breath analyser test alone is not enough to carry a criminal case to conclusion. For a prosecution to be legally safe, it must be backed by blood, urine or other medical tests as well.
This offers practical protection to citizens, including government employees and police personnel, who may face cases based only on a quick roadside breath test. Where the police fail to follow up with proper medical examination, the very basis of the case can be challenged.
The ruling also sends a message to investigating officers and trial courts. Investigations under the prohibition law must be thorough and based on strong medical evidence, not merely on one test. Cognizance should not be taken mechanically when the statutory safeguards and evidentiary standards are not met.
Legal Issues and Answers
- Issue: Can a criminal prosecution under Section 37(b) of the Bihar Liquor Prohibition and Excise Act, 2016 be sustained solely on the basis of a breath analyser test, without any supporting medical report?
Answer: The Patna High Court held that it cannot. Section 75 must be read to require both breath analysis and medical tests, and in the absence of blood/urine or other medical reports, prosecution cannot rest only on a breath analyser report. - Issue: Whether the cognizance order dated 27.11.2017 and subsequent proceedings in Kotwali P.S. Case No. 398 of 2017 could legally continue against the petitioners?
Answer: No. Since the FIR and prosecution were based solely on the breath analysis report without any further medical evidence, the Court quashed the cognizance order and all subsequent criminal proceedings.
Cases Cited by the Court
- Bachubhai Hassanalli Karyani Vs. State of Maharashtra, 1971(3) SCC 930, cited by the petitioners to show that conclusions about alcohol consumption should be based on blood and urine tests, not merely on external signs.
- Anil Kumar Sinha Vs. The State of Bihar & ors., Cr.W.J.C. No. 1624 of 2022 (Patna High Court) – referred to by the petitioners for quashing of proceedings based only on breath analyser tests.
- Narendra Kumar Vs. The State of Bihar & ors., Cr.W.J.C. No. 1430 of 2024 (Patna High Court) – referred to by the petitioners on similar lines.
- Manju Devi Vs. The State of Bihar & ors., C.W.J.C. No. 2590 of 2022 (Patna High Court) – also referred to by the petitioners regarding breath analyser based prosecutions.
Case Details
Case Number: Criminal Miscellaneous No. 1615 of 2018, arising out of Kotwali P.S. Case No. 398 of 2017, District Bhagalpur
Case Title: Madhukar Suman & Ors. Vs. State of Bihar & Anr.
Coram: Hon’ble Mr. Justice Sandeep Kumar
Citation: 2026 (6) PLJR 193
Advocates: Mr. Raju Giri, Advocate for the petitioners; Mr. Sri Jharkhandi Upadhyay, APP for the State
Nature of the Case: Criminal miscellaneous petition seeking quashing of cognizance order and criminal proceedings under Section 37(b) of the Bihar Liquor Prohibition and Excise Act, 2016
Date of Judgment: 10.09.2026
Court: High Court of Judicature at Patna
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/NiMxNjE1IzIwMTgjMSNO-M8ENAlUL8hY=
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