ORDER

The petitioner was a Constable of police attached to Kishanganj Police Station in the year 2021. On 05th May 2021, police conducted raid in the rented premises of one Suresh Poddar situated at Dumariya Bhatta, Ward No. 29 within the P.S. Kishanganj and recovered 03 empty tetra packets of foreign liquor under the brand named “Officer’s Choice”. The petitioner was arrested from the said tenant’s rent premise. It was alleged that the petitioner consumed liquor in violation of Bihar Prohibition and Excise Act, 2016 and, therefore, a case was registered against the petitioner being Kishanganj Police Station Case No. 207/2021 dated 05th May 2021 for the offence committed under Section 30(a)/37(b) of the Bihar Prohibition Act, 2016. The petitioner was suspended from his service with effect from 08th May 2021 and subsequently, a departmental charge-sheet was filed against him on the same set of facts. The departmental charge framed by the Superintendent of Police, Kishanganj is as follows:—

^^¼01½ fd'kuxat Fkkuk ds dk;kZy; i=kad& 1698@21, fnukad 08-05-2021 ds }kjk ,d fyf[kr izfrosnu ds Nk;kizfr ds lkFk vèkksgLrk{kjh dks lefiZr fd;k x;kA ftlesa iqŒvŒfuŒ jkeyky Hkkjrh ds }kjk ojh; inkfèkdkjh ds lwpuk ij flŒ@19 èkhjt dqekj dks fnukad 05-05-2021 dks Mqefj;k HkV~Vk okMZ uañ 29 Fkkuk+ftyk&fd'kuxat esa ,d xSjst ds dksfBuqek ?kj esa] 'kjkc dk lsou fd;s tSlk ikdj idM+k x;k ftls lnj vLirky fd'kuxat esa tk¡p gsrq Hkstk x;kA tgk¡ fpfdRld }kjk 21 izfr'kr vYdksgy 100 ,eñ,yñ 'kjkc ihus dk ckr fyf[kr fn;k x;kA**

2. The petitioner submitted his defense against the above-mentioned charge, stating, inter alia, that he was suffering from certain ailment and was under medical treatment of a Homeopath doctor. On the date and time when police conducted raid, he was taking rest after consuming Homeopath medicine but police arrested him on false allegation that he consumed wine.

3. In the departmental inquiry, the petitioner was found guilty and he was dismissed from service. The petitioner preferred an appeal which was also dismissed. Finally, he preferred a Memorial Appeal which also received the same fate. The petitioner has challenged the decision of his dismissal from service passed by the disciplinary authority and affirmed by the appellate authority as well as in Memorial of Appeal by filing the instant writ petition.

4. It is found from the inquiry report that during departmental inquiry, prosecution examined four witnesses. None of the said witnesses supported the charge framed against the petitioner. However, he was held guilty of misconduct for consuming alcohol in violation of Bihar Prohibition and Excise Act, 2016 on the basis of Breath Analyser Report from which it is ascertained that there was 21 % of alcohol revealed in the Breath Analyzer Report from the the breath of the petitioner.

5. Learned Advocate appearing on behalf of the respondents submits that disciplinary authority did not pass the order only on the basis of Breath Analyzer Report, but the prosecution case was that the petitioner was apprehended from tenanted premises of another person from where three numbers of tetra packets of empty foreign liquor was seized. Immediately the petitioner was sent to the local hospital and through Breath Analyzer Report, it is opined that the petitioner consumed foreign liquor. Therefore, the order of dismissal passed by the disciplinary authority and affirmed by the appellate authority is in accordance with law and there is no reason to interfere.

6. Having heard the learned counsels appearing on behalf of the parties and then on careful perusal of the entire materials on records, I am surprised to note that the petitioner was arrested on the allegation that he consumed alcohol on 05th May 2021 and, therefore, only on the basis of the report of the doctor, and that too by breath analzyer, a case was registered against the petitioner without examining his blood and urine.

7. It is needless to say that Breath Analyzer Report is not a conclusive proo