Bhubaneswar: The Patna HC has ruled that police cannot register FIR and arrest anyone on the charges of liquor consumption by relying on breath analyser test alone.
The Patna HC has delivered this judgment while hearing a criminal Writ that sought quashing of Excise Police Station Case registered for the offences punishable under Section 37 of the Bihar Prohibition and Excise Act, 2016.
THE CASE FACT
Excise team found the petitioner allegedly in an inebriated state at his temporary residence in Kishanganj. The team conducted the breath analyzer test and was immediately arrested and an F.I.R. was registered against him.
The counsel for the petitioner argued before the HC seeking quashing of the FIR. The counsel has submitted the following demanding quashing of the FIR. The arguments were.
- The entire prosecution case is based solely on the breath analyzer test, which cannot be a conclusive proof of consumption of alcohol.
- He further submits that no confirmatory blood or urine test was conducted, which is mandatory under law.
- The counsel cited the SC order on it.
- The counsel further argued that the petitioner had visited Electro Homeopathy Institute, Patna the said day for stomach infection treatment, where he was prescribed liquid homeopathic medicines containing alcohol-based solvent.
- This could have led to the blood alcohol concentration reading of 41/mg/100 ml. in thebreath analyzer test.
- But no further medical examination was conducted to establish the possibility of consumption of alcohol.
WHAT WAS SC ORDER?
In Bachubhai Hassanalli Karyani vs State of Maharashtra, reported in 1971, the 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 breathe 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 by a person suspected to have consumed alcohol.
PATNA HC RULING
The single judge bench of the Patna HC Justice Bibek Chaudhuri ruled that this Court has no other alternative but to hold that the authorities failed to consider the observation of the Supreme Court, and based on breath analyzer report, which cannot be said to be a conclusive proof of consumption of alcohol, registered an F.I.R.
As no blood or urine test conducted as laid down in the SC order, this FIR has been quashed.
EXPERTS TAKE
As per senior Advocate Ajit Shinde, “law requires corroborative evidence. So, blood/urine tests are mandatory under law. Breath test alone is not sufficient. The petitioner here brought in the angle of Homeophatic medicine consumption, as medical defense to show it as arbitrary arrest, which was barred by the constitution under Art 14 and 21. Courts always are strict on evidential standards. Therefore Patna HC ruled so. And it is a lesson for all police and excise officials across the country.
