Kundan GaurawversusThe State of Bihar

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No 9802 of 2022
     ======================================================
     Kundan Gauraw S/o Ravindra Kumar Singh Resident of Village-Samhota,
     P.O.-Kopa Samhota, P.S.-Kopa, District-Saran (Bihar).

                                                               ... ... Petitioner/s
                                        Versus
1.   The State of Bihar through the Principal Secretary, Home Department, Govt.
     of Bihar, Patna.
2.   Director General of Police, Bihar, Patna.
3.   Deputy Inspector General of Police, STF, Bihar, Patna.
4.   Superintendent of Police (Training), STF, Bihar, Patna.
5.   Police Inspector-Cum-Enquiry Officer, STF, Bihar, Patna.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :      Mr Raju Giri, Sr Advocate with
                                   M/s Harsh Vardhan, Harsh Raj, Chetan Anand, Kr
                                       Shantanu, Advocates
     For the Respondent/s   :      Mr Dhurendra Kr, AC to GP V
     ======================================================
     CORAM: HONOURABLE MR JUSTICE RITESH KUMAR

                                ORAL JUDGMENT

      Date : 10-02-2026


                  Heard the parties.

                  2 The present writ petition has been filed for the

     following reliefs:

                       “I    To     issue   an    appropriate
             writ/order/direction, in the nature of certiorari
             for quashing the order dated 21.12.2021 passed
             by the Superintendent of Police (Training), STF,
             Bihar, Patna by which the petitioner has been
             dismissed from service.

                       II    To     issue   an    appropriate
             writ/order/direction, in the nature of certiorari
             for quashing the order dated 04.04.2022 passed
             by the Deputy Inspector General of Police, STF,
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               Bihar, Patna by which the appeal of the
               petitioner has been rejected.

                         III    To    issue   an    appropriate
               writ/order/direction, in the nature of certiorari
               for quashing the enquiry report dated
               22.10.2021 submitted against the petitioner in
               STF Departmental Enquiry No 10/21 by the
               Inspector -cum- Enquiry Officer, STF, Bihar,
               Patna.

                         IV     To     issue    an   appropriate
               writ/order/direction, in the nature of mandamus
               commanding the respondents to reinstate the
               petitioner in service as Police Constable in Bihar
               Police with all consequential benefits.

                         V To any other relief or reliefs for
               which the petitioner is found to be entitled in the
               facts and circumstances of the case.

                          VA To issue           an     appropriate
               writ/order/direction in the nature of certiorari
               for quashing the order dated 03.04.2023 passed
               by the DGP, Bihar, Patna as contained in Memo
               No 218 dated 05.04.2023 by which the Memorial
               filed by the petitioner has been rejected.”

                    3 Vide order dated 31.01.2016 passed in the present

       case, IA No 1 of 2023 filed by the petitioner for addition of

       additional prayer was allowed and the learned counsel for the

       petitioner was permitted to add the same in relief portion of the

       writ petition as Para No 1 (VA) during course of the day and,

       accordingly Para No 1 (VA) was added.

                    4 The learned Senior Counsel for the petitioner submits

       that the petitioner, after being appointed, gave his joining in Bihar
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       Police as a constable on 01.07.2008. A First Information Report

       (for brevity, FIR) bearing Revelganj PS Case No 245 of 2021

       under Sections 30 (a) and 37 (b) (c) of the Bihar Prohibition and

       Excise Act, 2016 was lodged against the petitioner and some other

       persons for consumption of liquor and it was further alleged in the

       FIR that some bottles of beer was recovered from a vehicle. The

       petitioner was put behind bar and departmental proceeding was

       initiated against him. The petitioner was enlarged on bail vide

       order dated 09.07.2021 passed by the Additional Sessions Judge II

       -cum- Special Judge, Excise, Saran and after his release from jail,

       vide letter dated 15.07.2021, a request was made by the petitioner

       to the Superintendent of Police (for brevity, SP), Special Task

       Force (for brevity, STF), Bihar, Patna for granting him sometime

       for filing his reply to the memo of charges. The SP, STF, Bihar,

       Patna went ahead and appointed the Enquiry Officer as well as the

       Presenting Officer by his letter dated 19.07.2021 and the Memo of

       Charge dated 19.07.2021 was issued wherein it has been

       mentioned that the action of the petitioner amounts to indiscipline,

       casualness and dereliction of duty. Subsequently, the suspension

       of the petitioner was revoked vide order dated 30.07.2021.

                    5 The learned Senior Counsel for the petitioner further

       submits that the petitioner submited his application before the
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       Enquiry Officer on 09.08.2021 for exonerating him from the

       charges levelled against him but he went ahead with the enquiry

       and finally submitted his enquiry report on 22.10.2021, wherein

       the Enquiry Officer found the charges to be proved against the

       petitioner, only on the basis of the lodging of the FIR. A second

       show cause notice was issued to the petitioner vide letters dated

       27.10.2021 and 07.12.2021 but since the petitioner was busy in

       Panchayat elections, therefore, he requested for grant of some

       more time to file his reply, but instead of giving further time, the

       SP (Training), STF, Bihar, Patna, by the impugned order contained

       in Memo No 2525 dated 21.12.2021, without considering the

       materials and the fact that the petitioner could not submit the

       second show cause reply since he was engaged in Panchayat

       election duties, went ahead and awarded the punishment of

       dismissal from service upon the petitioner.       The Disciplinary

       Authority, only on the basis of the lodging of the FIR and the fact

       that in breath analyzer machine, the petitioner was found to have

       consumed liquor, passed the impugned order.

                    6 Being aggrieved with the order of dismissal, the

       petitioner preferred statutory appeal before the appellate authority

       wherein he gave a detailed description of the situation wherein he

       was forced not to file his show cause reply and in the Memo of
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       Appeal, he also took a plea that although the machine, i e, breath

       analyzer machine, is required to be verified/tested within 12

       months but in the calibration report, the date is mentioned as

       13.03.2019 and the report has been generated in case of the

       petitioner on 06.07.2021, i e, after almost 28 months, therefore the

       same cannot be said to be valid. Apart from the above referred

       defence, the petitioner has raised other illegalities in the

       departmental proceeding during course of enquiry but the appellate

       authority, in a mechanical manner relying upon the dismissal

       order, went ahead to reject the appeal of the petitioner by the

       impugned order contained in Memo No 93 dated 04.04.2022

       issued under the signature of the DIG, STF, Bihar, Patna. The

       petitioner filed Memorial before the Director General of Police

       (for brevity, DGP), Bihar, Patna but the same was also dismissed

       without considering any of the defence raised by the petitioner in

       his Memorial application, vide Letter No P-3/13-07-27-2022/218

       dated 05.04.2023 issued under the signature of the DGP, Bihar,

       Patna.

                    7 It has been submitted by the learned Senior Counsel

       for the petitioner that the orders impugned have been passed only

       on the basis of the fact that in breath analyzer test, the petitioner

       was found to have consumed liquor and FIR was lodged against
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       him.      Neither the Disciplinary Authority nor the Appellate

       Authority or the Authority who considered the Memorial preferred

       by the petitioner considered the defence taken by the petitioner and

       went ahead in passing the impugned orders, whereby the petitioner

       has been dismissed from service and the same has been confirmed

       by the Appellate Authority and the Authority who has passed the

       order upon Memorial filed by the petitioner. The Authorities did

       not consider that the vehicle in question from where bottles of

       liquor were said to have been seized, did not belong to the

       petitioner and the report submitted by the Forensic Science

       Laboratory (for brevity, FSL), it has come that no ethyle alcohol

       was detected in the urine sample of the petitioner. The learned

       Senior Counsel for the petitioner relies upon a judgment dated

       28.09.2022 passed in CWJC No 1076 of 2021 by a coordinate

       Bench of this Court wherein in paragraph No 8, it has been held as

       follows:

                        “8 Lodging of FIR per se cannot be
               made the basis of holding the charges proved.
               The Apex Court in the case of Roop Singh Negi
               v Punjab National Bank, reported in (2009) 2
               SCC 570, in paragraph 14 has held as follows:

                        “14 Indisputably, a departmental
               proceeding is a quasi-judicial proceeding. The
               enquiry officer performs a quasi-judicial
               function. The charges levelled against the
               delinquent officer must be found to have been
               proved. The enquiry officer has a duty to arrive
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                at a finding upon taking into consideration the
                materials brought on record by the parties. The
                purported      evidence      collected     during
                investigation by the investigating officer against
                all the accused by itself could not be treated to
                be evidence in the disciplinary proceeding. No
                witness was examined to prove the said
                documents. The management witnesses merely
                tendered the documents and did not prove the
                contents thereof. Reliance, inter alia, was
                placed by the enquiry officer on the FIR which
                could not have been treated as evidence.”

                    8 The learned Senior Counsel for the petitioner further

       relies on a judgment passed by a coordinate Bench of this Court in

       CWJC No 14846 of 2021 (Dharmraj Singh @ Dhamraj Singh

       -Versus- The State of Bihar & Others) wherein by the order dated

       09.05.2024, the coordinate Bench set aside the order of dismissal

       and the consequential orders passed on almost identical charges.

       The learned Senior Counsel for the petitioner relies on Paragraphs

       No 13 to 16 of the above mentioned judgment which reads as

       under:

                         “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
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               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.”

                    9 The learned Senior Counsel for the petitioner further

       relies on a judgment dated 05.02.2026 passed by this Court in

       CWJC No 4818 of 2023 in the case of Rakesh Kumar -Versus-

       The State of Bihar & Others wherein this Court, while relying on

       different judgments of coordinate Benches and the Hon’ble

       Supreme Court of India, has set aside the order passed by the

       Disciplinary Authority, the Appellate Authority and the Authority

       who had passed the order in Memorial and directed the petitioner

       to be reinstated in service forthwith.
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                    10 The learned counsel for the State submits that the

       petitioner is a named accused in Revelganj PS Case No 245 of

       2021 instituted under different sections of the Bihar Prohibition

       and Excise Act, 2016 and was arrested along with other accused in

       this case and further the vehicle of the petitioner was searched and

       12 bottles of liquor was found from the vehicle in question. The

       learned counsel for the State further submits that the petitioner and

       others were put to Ethyle alcohol test and their test result were

       positive and accordingly, they were arrested and remanded to

       judicial custody. The enquiry report was submitted by the Enquiry

       Officer, wherein after considering the material, including the

       deposition of witnesses, the Enquiry Officer found the charges to

       be proved against the petitioner and due opportunity was given to

       the petitioner by the Disciplinary Authority, but he did not choose

       to file his second show cause reply, therefore left with no

       alternative, the Disciplinary Authority passed the impugned order

       whereby the services of the petitioner were dismissed.

                    11 A reply has been filed on behalf of the petitioner

       wherein it has been stated that the breath analyzer machine was

       faulty and it was not caliberated within the stipulated time in terms

       of the Bihar Legal Meteorology (Enforcement) Rules, 2014 (for

       brevity, the Rules) since as per the breath analyzer report of the
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       petitioner, the caliberation date of the machine was 13.03.2019 and

       the test was conducted on 06.07.2021, i e beyond one year and as

       per the Rules, the caliberation of the breath analyzer machine

       should be done on completion of 12 months which has not been

       done in the present case.

                    12 The learned Senior Counsel for the petitioner further

       refers to Section 2 (w) of the Legal Meteorology Act, 2009 (for

       brevity, the Act) and Rule 14 of the Rules and submits that the

       breath analyzer machine falls within the definition of weight and

       measure as it is used to measure blood alcohol contained and

       therefore, specification and caliberation are required to be done as

       per the provisions of the Act and the Rules. He further submits

       that the urine of the petitioner was also sent to the Regional FSL,

       Muzaffarpur, Bihar and on perusal of the report dated 30.10.2021,

       it will transpire that Ethyle alcohol was not detected in the urine of

       the petitioner. Even in the light of Letter No 294 dated 20.05.2022

       issued by the Police Headquarter, Bihar, Patna, it has been

       specifically mentioned that charges are being proved only on the

       basis of the breath analyzer test not in the departmental proceeding

       and the parties concerned should not be awarded the punishment

       of dismissal from service only on the basis of the breath analyzer

       test. It has further been submitted in the reply affidavit that the
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       vehicle from where liquor was said to have been seized does not

       belong to the petitioner and the said vehicle belongs to one Saurav

       Satish and in respect thereof, the registration document of the

       vehicle has also been brought on record.

                    13 From the arguments advanced on behalf of the parties

       and after going through the records, I find that the Enquiry Officer

       found the charges to be proved against the petitioner only on the

       basis of lodging the FIR and the Disciplinary Authority passed the

       order of dismissal on the basis of the said enquiry report. Neither

       the Enquiry Officer nor the Disciplinary Authority took pain to

       obtain the urine report which was sent to the FSL to ascertain that

       whether liquor was found in the petitioner’s report or not. Further,

       neither the appellate Authority nor the concerned Authority, i e the

       DGP who had passed the order on the Memorial preferred by the

       petitioner took into consideration any of the defence taken by the

       petitioner by way of his Memorial. Different Benches of this

       Court have held that punishment based on breath analyzer test

       cannot sustain and that even the State Government, in view of

       different judgments passed by this Court, came out with a

       notification contained in Memo No 294 dated 20.05.2022 issued

       under the signature of DIG (Personnel), Bihar, Patna wherein in
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                    paragraph No 20, specially it has been mentioned with regard to

                    breath analyzer report.

                                  14 In my considered opinion, the order contained in

                    Memo No 2525 dated 21.12.2021, Memo No 93 dated 04.04.2022

                    and Letter No P-3/13-07-27-2022/218 dated 05.04.2023 deserve to

                    be set aside and are accordingly, set aside.        The petitioner is

                    directed to be reinstated in service forthwith. However, he will not

                    be entitled to any salary for the period when he was not in service

                    since undisputedly, he has not worked. However, the said period

                    will be counted notionally for giving all the benefits to the

                    petitioner.

                                  15 In the aforementioned terms, this writ application is

                    allowed.


                                                  (Ritesh Kumar, J)
M.E.H./-
AFR/NAFR                      NAFR
CAV DATE                        NA
Uploading Date              13.02.2026
Transmission Date               NA