Patna High Court
Abhay Kumar SinghversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ANSHUMAN
Holding
The dismissal, appellate order and memorial order are set aside as they were based on a non‑conclusive breath‑analyzer report and were passed without observing procedural fairness, and the petitioner is to be reinstated.
Summary
Abhay Kumar Singh, a constable in the Bihar Rail Police, was arrested on 08.01.2022 on allegations of intoxication based solely on a breath‑analyzer report, without any blood or urine test. He was suspended, later reinstated, and subsequently subjected to departmental proceedings that culminated in his dismissal on 06.05.2022. The petitioner contended that the disciplinary and appellate authorities acted arbitrarily, violated the Bihar CCA Rules, 2005 and the principles of natural justice by not allowing cross‑examination or considering medical evidence. The State argued that the procedures were lawful and that breath‑analyzer evidence was conclusive. The High Court, relying on its own precedents and Supreme Court authority, held that a breath‑analyzer report alone is not conclusive proof of alcohol consumption and that the dismissal was manifestly arbitrary. Consequently, the Court set aside the dismissal, the appellate order and the memorial order, and directed the petitioner’s reinstatement with consequential benefits.
Issues considered
- Whether a breath‑analyzer report alone can constitute conclusive proof of intoxication for disciplinary action.
- Whether the departmental proceedings complied with the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, particularly Rules 17(3) and 17(14).
- Whether the dismissal of the petitioner violated the principles of natural justice.
- Whether the appellate and memorial orders were legally valid.
Legislation cited
- Bihar Prohibition and Excise Act, 2016 — s. 37(b), 37(c)
Subjects
- departmental dismissal
- natural justice
- breath analyzer evidence
- Bihar CCA Rules
- reinstatement
- service law
- procedural fairness
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5460 of 2025
======================================================
Abhay Kumar Singh Son of Late Upendra Prasad Singh, resident of Village-
Fatehpur, P.S.-Raghopur, District-Vaishali.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Home
Department, Government of Bihar, Patna.
2. The Director General of Police, Bihar, Patna.
3. The Deputy Inspector General of Police (Rail), Bihar, Patna.
4. The Superintendent of Police (Rail), Patna.
5. The In-charge Parichari Pravar, Rail Patna, District-Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Akshansh Ankit, Advocate
Mr. Manoranjan Kumar, Advocate
For the State : Mr. Piyush Kumar Pandey (AC to SC-11)
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 02-04-2026
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The present writ petition has been filed for
issuance of an appropriate writ(s)/order(s)/direction(s) for grant
of the following relief/s:-
“I. To quash the order as contained in
Patna High Court CWJC No.5460 of 2025 dt.02-04-2026
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Memo No. 689 dated 23.11.2022 (Annexure
P/11) issued by the Respondent No. 2
whereby and whereunder the memorial
preferred by the Petitioner against the
appellate order has been dismissed.
II. To quash the Appellate order as
contained in Memo No. 529 dated
19.07.2022 (Annexure P/9) issued by the
Respondent No. 3 whereby and whereunder
the appeal preferred by the Petitioner
against the order of punishment has been
rejected, in a most mechanical and arbitrary
manner without following the procedure
prescribed under the relevant Rules or
complying with the principles of natural
justice.
III. To quash the order of punishment as
contained in Memo No. 1101 dated
06.05.2022 (Annexure P/8) issued by the
Respondent No. 4 whereby and whereunder
the petitioner has been dismissed from
service in a most mechanical and arbitrary
manner without following the procedure
prescribed under the relevant Rules or
complying with the principles of natural
justice.
IV. To direct the Respondents concerned to
give a posting commensurate to the status of
the Petitioner with all consequential benefits
including continuity in service, arrears of
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salary etc.
V. To pass any other order/orders in shape
of a consequential relief to which the
Petitioner may be found to be legally
entitled to in the facts and circumstances of
the instant case at hand.”
3. Learned counsel for the petitioner submits that
the petitioner was initially appointed on the post of Constable on
28.11.1994, against a sanctioned vacant post following the due
recruitment process. Counsel submits that while the petitioner
was posted as Constable at Rail Police Kendra, Patna, he was
falsely implicated in a criminal case at the behest of higher
officials. Counsel submits that the petitioner was arrested on
08.01.2022 near Patna Junction and accordingly, FIR has been
lodged against him bearing Kotwali P.S. Case No. 10 of 2022
dated 08.01.2022 under section37(b)(c) of the Bihar Prohibition
and Excise Act, 2016. Counsel submits that though, the
petitioner was arrested on the allegation that he was in the state
of intoxication consuming liquor, but this fact was not correct
and on the basis of breath analyzer report without collecting
blood sample and urine sample, the petitioner was arrested and
subsequently, suspended vide Rail District Order no. 43 of 2022
dated 15.01.2022. Counsel submits that thereafter, his
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suspension was revoked vide Memo No. 659 dated 09.03.2022.
He further submits that no preliminary enquiry was undertaken
and direction for initiation of the departmental proceeding has
been made. In the departmental proceeding bearing Disciplinary
Proceeding No. 02 of 2022, charge memo was issued to the
petitioner on 31.01.2022, alleging that he was found in the state
of intoxication. Thereafter, the Enquiry Officer was appointed
and the petitioner was directed to file his reply, which he has
submitted on 11.02.2022. The petitioner participated in the
enquiry proceeding and oral evidence of the witness taken place,
but petitioner was not granted any opportunity to cross examine
the three witnesses. Counsel submits that the petitioner was
found guilty by the Enquiry Officer, which is in gross violation
of principles of natural justice. The Enquiry Officer submitted
his enquiry report and the matter was referred to the
Disciplinary Authority who issued a second show cause to the
petitioner vide Memo No. 650 dated 08.03.2022. The petitioner
submitted his reply to the second show cause, but the
Disciplinary Authority has imposed punishment upon the
petitioner contained in Memo No. 1101 dated 06.05.2022
(Annexure P/8), by which, the petitioner was dismissed from the
service, which is in complete violation of principles of natural
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justice. It was also directed that no payment be made to the
petitioner apart from the payment already made during the
service period.
4. Learned counsel for the petitioner further
submits that at the time of passing of the order, the Disciplinary
Authority has not recorded his reasonings and only on the basis
of suspicion and report of the breath analyzer machine, the
petitioner has been punished. He submits that the order passed
by the Disciplinary Authority has been further challenged by the
petitioner before the Appellate Authority, but the Appellate
Authority has rejected the petitioner’s appeal in a cryptic
manner, contained in Memo No. 529 dated 19.07.2022
(Annexure P/9). The petitioner being aggrieved has preferred
memorial, but his memorial was also rejected contained in
Memo No. 689 dated 23.11.2022 (Annexure P/11), on the
ground that the memorial is not maintainable. Counsel submits
that thereafter, the petitioner moved before this Hon’ble Court in
C.W.J.C. No. 568 of 2023, which was dismissed as withdrawn
vide order dated 25.11.2024 with liberty to the petitioner to avail
the appropriate remedy. Counsel submits that thereafter, the
petitioner filed the present writ petition i.e. C.W.J.C. No. 5460
of 2025 annexing all the materials. Counsel submits that order
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of removal is a major punishment. He submits that in series of
decisions, this Hon’ble Court has pleased to hold 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. He submits that in
C.W.J.C. No. 14846 of 2021 (Dharmraj Singh @ Dhamraj
Singh Vs. The State of Bihar & Ors.) decided on 09.05.2024,
this Hon’ble Court has granted relief to the petitioner of the said
writ petition and the writ petition was allowed. Counsel further
submits that in L.P.A. No. 1095 of 2024 (The State of Bihar &
Ors. Vs. Aswasthama Mahto @ Ashwathama Mahto), decided
on 26.02.2026, the Hon’ble Division Bench of this Court has
also pleased to hold that consumption of alcohol cannot be
tested in breath analyzer test, particularly when, samples of
urine test or blood test have not been collected, and in this way,
the findings of the Bachubhai Hassanalli Karyani Vs. State of
Maharashtra, reported in (1971) 3 SCC 930 has been relied
upon.
5. Learned counsel for the State, on the other hand,
submits that there is no illegality made in the departmental
proceeding as the petitioner was found in the state of
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intoxication and he was arrested in the state of intoxication by
the police and accordingly, FIR has been lodged. Counsel
submits that there is neither any procedural lapse nor any rule
has been violated, rather, full opportunity of hearing has been
provided to the petitioner. He submits that in L.P.A. No. 1199 of
2024 (The State of Bihar & Ors. Vs. Rakesh Kumar) in which
question of breath analyzer is a conclusive test for ascertaining
that a person is in the state of consumption or not has been
admitted before this Hon’ble Court in the above mentioned case.
Therefore, he submits that till decision of the said L.P.A. No.
1199 of 2024, the present writ petition may not be decided.
Counsel further submits that each and every point has been well
discussed and accordingly, the punishment of dismissal from
service has been imposed upon the petitioner, which has been
affirmed in the appellate order and there is no need of any
interference in this matter.
6. After hearing the parties and upon perusal of the
record, it transpires to this Court that the charge memo has been
served upon the petitioner vide Annexure-P/3 in the light of
regulation of 2017, prepared on the basis of Rule 17(3) of the
Bihar Government Servants (Classification, Control & Appeal)
Rules, 2005 (hereinafter referred to as ‘Bihar CCA Rules,
Patna High Court CWJC No.5460 of 2025 dt.02-04-2026
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2005’). The allegation is there in the charge memo that the
petitioner was found present near Patna junction in the state of
intoxication. In the show cause, the defence has been taken by
the petitioner that he has taken homeopathic medicine and in
support of his claim, he has attached photocopy of prescription
vide Annexure-P/2, by which, the petitioner has shown that he is
in continuous treatment of taking homeopathic medicine. The
Enquiry Officer in the enquiry found the charges proved against
the petitioner. It has been alleged that the petitioner has not
cross examined the persons who have adduced evidence against
him. The Disciplinary Authority upon going through the enquiry
report, has issued a second show cause. In accordance with
second show cause, the petitioner has filed his detailed reply.
The detailed reply has not been considered in the final order and
he has been punished. This point has been raised by the
petitioner in the second show cause as well as in the appeal
before the authorities concerned that he is under treatment of
Homeopathy Doctor and continuously used to take homeopathic
medicine and on that very date also, he has submitted that he
has taken the homeopathic medicine. But, the Kotwali police
forcefully asked him to sit in the car and he was subsequently
arrested.
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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
Patna High Court CWJC No.5460 of 2025 dt.02-04-2026
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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.
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,
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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 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,
Patna High Court CWJC No.5460 of 2025 dt.02-04-2026
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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
conclusion with regard to
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
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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
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
present case. Bachubhai Hassanalli
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
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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 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
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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,
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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 a conclusive proof of
consumption of 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
Patna High Court CWJC No.5460 of 2025 dt.02-04-2026
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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 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
Patna High Court CWJC No.5460 of 2025 dt.02-04-2026
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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.
10. Hence, in view of the discussions made above,
this Court finds that the impugned orders have been passed
without appreciation of rules laid down and consideration of law
and they are fit to be set aside. Hence, the order passed by the
Disciplinary Authority contained in Memo No. 1101 dated
06.05.2022 (Annexure P/8), order passed by the Appellate
Authority contained in Memo No. 529 dated 19.07.2022
(Annexure P/9) and the order passed in the memorial contained
in Memo No. 689 dated 23.11.2022 (Annexure P/11), all are
hereby set aside. The petitioner is hereby directed to be
reinstated in the service.
11. So far as the consequential benefits are
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concerned, the same shall be examined by the respondents in
view of the mandate of the Hon’ble Supreme Court of India in
the case of Deepali Gundu Surwase Vs. Kranti Junior
Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324.
12. Accordingly, with the aforesaid observation and
direction, this writ petition stands allowed.
(Dr. Anshuman, J)
Divyansh/-
AFR/NAFR
CAV DATE NA
Uploading Date 04/04/2026
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