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Patna High Court

BiharversusAswasthama Mahto @ Ashwathama Mahto

Decided
Disposal
DISMISSED

Holding

The appellate court held that the disciplinary action based solely on a breathalyzer report without blood or urine analysis was arbitrary and violative of natural justice, and therefore the Single Judge’s order setting aside the dismissal was affirmed.

Summary

The respondent, a constable turned havaldar in the Bihar Military Police, was dismissed after being alleged to have consumed alcohol on 31-12-2019, based solely on a breathalyzer test and a doctor's report, without any blood or urine analysis. He challenged the dismissal, arguing that the breath smell could be due to medication and that the disciplinary authority failed to follow proper procedural safeguards. The Single Judge set aside the dismissal, holding that the breathalyzer report was not conclusive proof of intoxication and that the disciplinary process violated natural justice. On appeal, the High Court examined whether the Supreme Court’s decision in Bachubhai Hassanalli Karyani v. State of Maharashtra, which requires blood or urine tests to prove drunkenness, applied to disciplinary proceedings. The Court concluded that the disciplinary authority’s reliance on the breathalyzer alone rendered the dismissal arbitrary and affirmed the Single Judge’s order. Consequently, the intra‑court appeal was dismissed, leaving the respondent’s dismissal in place and the benefits directed by the Single Judge intact.

Issues considered

  • Whether a breathalyzer test alone is sufficient evidence to establish consumption of alcohol for disciplinary action under the Bihar Prohibition and Excise Act, 2018.
  • Whether the disciplinary authority violated principles of natural justice by not conducting blood or urine tests.
  • Whether the Supreme Court’s ruling in Bachubhai Hassanalli Karyani v. State of Maharashtra is applicable to departmental disciplinary proceedings.
  • Whether the dismissal order was arbitrary and therefore liable to be set aside.

Subjects

  • disciplinary proceedings
  • police service dismissal
  • breathalyzer test
  • natural justice
  • Bihar Prohibition and Excise Act
  • intra-court appeal
  • letters patent appeal
  • procedural fairness

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                               Letters Patent Appeal No.1095 of 2024
                                                  In
                            Civil Writ Jurisdiction Case No.15963 of 2021
                 ======================================================
           1.    The State of Bihar through the Home Secretary, Bihar, Patna.
           2.    The Director General-cum-Inspector General of Police, Bihar, Patna.
           3.    The Deputy Inspector General of Police, Bihar Military Police, North
                 Mandal, Muzaffarpur.
           4.    The Commandant of Bihar Military, Police- 7, Katihar.
           5.    The Investigation/Enquiry Officer-cum-Chief Inspector (C), Bihar Military
                 Police-7, Katihar.

                                                                             ... ... Appellant/s
                                                   Versus

                 Aswasthama Mahto @ Ashwathama Mahto Son of Late Dallu Mahto
                 Resident of Village- Kocho (Koncho), P.O.- Tutki Nawadih, Police Station-
                 Silli, District- Ranchi (Jharkhand).

                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s    :     Mr. Manoj Kumar, AC To GP-4
                 For the Respondent/s   :     Mr. Upendra Mishra, Advocate
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
                         and
                         HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
                                       ORAL ORDER

                 (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

4   26-02-2026                  The present intra court appeal is preferred against the

                   order dated 09.05.2024 passed in CWJC No. 15963 of 2021,

                   whereby the learned Single Judge allowed the writ petition, and

                   has set aside the order of punishment of dismissal from service

                   imposed upon the respondent. Further, the appellants have been

                   directed to give all financial benefits to the respondent.
Patna High Court L.P.A No.1095 of 2024(4) dt.26-02-2026
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                       2. The brief facts giving rise to the present appeal are

          that the respondent was initially appointed as a Constable in the

          Bihar Military Police (BMP) and had rendered about 33 years of

          service. Later, he was promoted to the post of Havaldar, and was

          serving in E-Company, BMP-7, Katihar, on deputation at Supaul

          Stadium, Supaul. On 31.12.2019, he was alleged to have been

          found in an intoxicated state, and a breathalyzer test was

          conducted on him. Subsequently, a case (Supaul P.S. Case No.

          828/2019) was registered against him under Sections 37(a) and

          37(b) of the Bihar Prohibition and Excise Act, 2018, alleging

          that he had consumed alcohol. Consequently, he was suspended

          and served a show-cause notice (Memo No. 356 dated

          14.02.2020) asking him to explain why disciplinary action

          should not be taken against him.

                       3. The respondent in his reply to show cause stated

          that he had only consumed certain medicines, which caused

          alcohol smell in his breath. The appellant-authorities did not

          consider this to be a reasonable explanation and found the

          respondent guilty, and passed the order of dismissal. Dissatisfied

          with the dismissal order, the respondent preferred an appeal

          before the Deputy Inspector General of Police, BMP,

          Muzaffarpur, which was dismissed. Thereafter, the respondent
Patna High Court L.P.A No.1095 of 2024(4) dt.26-02-2026
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          filed the impugned writ application, which came to be allowed.

                       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, 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
Patna High Court L.P.A No.1095 of 2024(4) dt.26-02-2026
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                          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
                          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 reasonable doubts, whereas, disciplinary
Patna High Court L.P.A No.1095 of 2024(4) dt.26-02-2026
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          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 conclusively proved

          unless urine or blood test is carried out. The relevant paragraphs
Patna High Court L.P.A No.1095 of 2024(4) dt.26-02-2026
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          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.”

                       9. The delinquent during departmental inquiry has

          specifically made his defence supported with the documentary

          evidence that at the relevant time he had taken homeopathic

          medicine as prescribed by the doctor, thus, such consumption of

          homeopathic medicine could have caused/indicated alcohol in

          breathalyzer test. Whereas, the findings of the inquiry report,

          nowhere discuss about the defence taken by the delinquent

          (respondent), as indicated above. Therefore, on this count also

          the finding of the said inquiry report suffers from the vice of

          arbitrariness and impropriety.

                       10. As such, it is evident that the appellant-authorities

          failed to adhere to mandatory procedural requirements;

          specifically, no blood or urine analysis was conducted to
            Patna High Court L.P.A No.1095 of 2024(4) dt.26-02-2026
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                      substantiate the finding that the respondent was under the

                      influence of alcohol. Therefore, the disciplinary action initiated

                      against the respondent, resting solely on a finding devoid of the

                      requisite medical corroboration is legally unsustainable and

                      cannot be upheld.

                                   11. Considering the discussions made above, we find

                      no illegality or perversity in the order of the learned Single

                      Judge, and the order is hereby affirmed.

                                   12. Accordingly, the present intra court appeal stands

                      dismissed.

                                   13. Pending application(s), if any, shall stand disposed

                      of.


                                                    (Sudhir Singh, J)


                                               (Rajesh Kumar Verma, J)

Anushka/-

U


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