Patna High Court
MANOJ KUMAR THAKUR @ MANOJ THAKUR @ MANOJ KUMA THAKURversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PRAVEEN KUMAR
Holding
A prosecution for drunkenness under Section 37(b) of the Bihar Prohibition and Excise Act, 2016 cannot be sustained on the basis of a breath analysis test alone; blood and/or urine tests are mandatory.
Summary
Manoj Kumar Thakur, a Class‑IV employee (barber) of the Bihar Military Police, was alleged to have been intoxicated at a police gate on 24‑11‑2016. He was taken to the Excise Department where only a breath analysis test was conducted, showing 630 g/100 ml of alcohol; no blood or urine tests were performed. The petitioner filed a petition to quash the Special Judge's order taking cognizance under Section 37 of the Bihar Prohibition and Excise Act, 2016, arguing that Section 75 requires blood/urine confirmation and that breath analysis alone is insufficient for conviction. The Court, relying on prior judgments, held that the statutory language "and/or" must be read as "and", meaning both breath and medical tests are required for a criminal prosecution. Consequently, the FIR and all subsequent proceedings were quashed and the petition was allowed.
Issues considered
- Whether a prosecution under Section 37(b) of the Bihar Prohibition and Excise Act, 2016 can be sustained solely on a breath analysis test without blood or urine verification.
- Whether the failure to conduct mandatory medical tests violates the evidentiary standards required for conviction under the Act.
Legislation cited
- Bihar Prohibition and Excise Act, 2016 — s. 37(b), 75(1), 75(2), 75(3)
- Indian Evidence Act, 1872
Subjects
- alcohol consumption
- breath analysis test
- blood test
- urine test
- Section 37
- Section 75
- quash
- criminal proceeding
- excise law
- evidentiary standards
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.59173 of 2025
Arising Out of PS. Case No.-381 Year-2016 Thana- GOVERNMENT OFFICIAL COMP.
District- Muzaffarpur
======================================================
MANOJ KUMAR THAKUR @ MANOJ THAKUR @ MANOJ KUMA
THAKUR S/O Late Jagdish Prasad Thakur @ Jagdish Thakur R/O Gaushala
Road, Begusarai, P.O.- Begusarai, P.S.- Town, Dist.- Begusarai- 851101
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Arun Kumar Sinha, Advocate
Mr. Amit Narayan, Advocate
For the Opposite Party : Mr. Madhura Nand Jha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PRAVEEN KUMAR
CAV ORDER
4 24-06-2026 Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the State.
2. The present application has been filed for quashing
the order dated 04.10.2024, passed by the learned Exclusive
Special Judge (Excise), Court No.II, Muzaffarpur, in Excise P.S.
Case No.381/2016/Spl.-Ex.3527/24, whereby cognizance has
been taken under Section 37 of the Bihar Prohibition and Excise
Act, 2016 (hereinafter referred to as ‘the Act’) against the
petitioner and the petitioner was summoned. The petitioner has
further prayed for quashing the entire criminal proceeding
arising out of Excise P.S. Case No.381 of 2016 dated
25.11.2016.
3. The prosecution case, as per the First Information
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Report (FIR), is that the petitioner was working as a Class-IV
employee on the post of Barber in Bihar Military Police-15,
Balmikinagar, Bagaha, and he was assigned with the duty of
hair cutting. It has been alleged that, on 24.11.2016, at 15.45
hours, the Deputy Superintendent of Police was informed about
the petitioner creating nuisance at Gate No.2 in an inebriated
condition. It has further been alleged that the petitioner was
thereafter taken to the Office of Prohibition and Excise
Department, Muzaffarpur, for taking appropriate action against
him and thereafter breath analysis test was conducted upon the
petitioner and as per the breath analysis test report, he was
found to have consumed 630.0g/100ml of alcohol.
4. Learned counsel for the petitioner has submitted
that to ascertain the consumption of liquor, only breath analysis
test was done and no urine or blood test, as is mandated, was
conducted so as to come to a final conclusion that the petitioner
was found to have consumed alcohol. It has further been
submitted that the prosecution report itself goes to show that
only breath analysis test was conducted upon the petitioner. It
has further been submitted that though the petitioner was taken
into custody, the police did not conduct any blood or urine test
of the petitioner for confirmation of consumption of alcohol. It
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has further been submitted that the petitioner did not display any
behaviour such as slurred speech or unsteady gait or any such
behaviour which could be levelled to be in drunken condition.
5. Learned counsel for the petitioner, in support of his
contention, has relied upon an unreported judgment rendered by
a coordinate Bench of this Court, on 16.09.2025, in Cr. W.J.C.
No. 1692 of 2025 (Maandhata Mishra Vs. The State of Bihar
and Ors.), and has referred to paragraphs 6, 7 and 11 thereof,
which are reproduced hereunder: -
“06. 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 Coordinate 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 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.
Patna High Court CR. MISC. No.59173 of 2025(4) dt.24-06-2026
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07. Learned counsel next 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.
11. 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 Section73 may ask any
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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 disconjunction so as
to infer that either the breath analysis report
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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 sustained merely on
the basis of breath analysis test report.”
6. Learned Additional Public Prosecutor appearing on
behalf of the State has vehemently opposed the prayer of the
petitioner and has submitted that there is no merit in the present
petition and the same deserves to be dismissed. Learned APP for
the State submitted that Section 75 of the Act provides for
conduct of breath analysis test and medical test and the Act
specifically provides breath analyzer test as a means to ascertain
whether a person has consumed alcohol or not. If the petitioner
has been found having consumed alcohol contained of
630.0g/100ml in breath analysis report, an offence is made out
under Section 37(b) of the Act. It has further been submitted that
the allegation that the petitioner was in intoxicated state was
substantiated by the breath analysis test, and, therefore, he has
committed an offence under the provisions of the Act.
7. In the present case, the prosecution was initiated by
lodging a prosecution report and the same was based solely on
the report of breath analysis test of the petitioner and is not
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supported with other medical tests/reports and hence the
prosecution report against the petitioner cannot be sustained.
8. Accordingly, the FIR bearing Excise P.S. Case
No.381/2016/Spl.-Ex.3527/24 and all subsequent criminal
proceedings against the petitioner is quashed.
9. This application is allowed.
(Praveen Kumar, J)
Pawan/-
AFR/NAFR NAFR
CAV DATE 12.05.2026.
Uploading Date 24.06.2026
Transmission Date 24.06.2026
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