Disciplinary action against police personnel cannot rely solely on a breathe analyzer report for alcohol consumption without corroborative blood or urine tests.

ORDER :

(Bibek Chaudhuri, J.)

The petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, praying for the following reliefs :-

“1. For issuance of a Writ in the nature of certiorari to quash the Muzaffarpur District Order bearing No. 74/2021 as contained in Memo No. 185 dated 14.01.2021 issued under the signature of Disciplinary Authority- Cum- Senior Superintendent of Police, Muzaffarpur, whereby and where under petitioner has been discharged from service and further to quash the order Appellate order passed in Departmental appeal by the Inspector General of Police, Muzaffarpur vide Memo No. 847 dated 12.07.2021 communicated through Muzaffarpur District Order No. 1374/2021 as contained in Memo No. 3394 dated 16.07.2021 by which the Departmental Appeal preferred by the petitioner has been rejected and also to quash the subsequent order passed by the Director General of Police, Bihar, Patna communicated vide Letter No. 127 dated 30.05.2022 whereby the memorial application filed by the petitioner against the Appellate Order of the Inspector General of Police, Tirhut Range, Muzaffarpur has also been rejected and further for issuance of a writ in the nature of mandamus commanding and directing the Senior Superintendent of Police, Muzaffarpur to reinstate the petitioner on his respective post with all consequential benefits to which the petitioner is legally entitled too and further for issuance of any other appropriate writ or writs, order or orders to which the petitioner may be legally too.”

2. The petitioner was a Driver, posted in Muzaffarpur District Police. He was on leave and went to his parental village at Harnaut in the District of Nalanda. On 16th of August, 2019, he went to Harnaut market to purchase some grocery items. In the meantime, quarrel took place in between some persons. As soon as police party appeared on the spot, the persons who were involved in quarrel started to flee away. The petitioner was witnessing the incident, standing in front of the grocery shop. However, police apprehended him and brought into the police station along with other persons. Thereafter, he along with other arrested persons were sent to Nalanda Excise Office. The petitioner and other persons were tested by breath analyzer and from breath analyzer report, it is opined that he consumed alcohol which is a prohibited item under Bihar Prohibition Excise Act, 2016.

3. It was urged by the petitioner that he was suffering from abdominal disorder and took homeopathy medicine for his aliment.

4. On the basis of breathe analyzer report, a formal FIR was lodged against the petitioner. He was arrested and a case under the penal provision of Bihar Prohibition and Excise Act, 2016 was instituted against him.

5. As the petitioner was made an accused in a criminal case under the Bihar Prohibition and Excise Act, 2016, he was suspended in contemplation of departmental proceeding. Subsequently, departmental proceeding was started. On conclusion of the departmental proceeding, the petitioner was dismissed from service. He filed the statutory appeal against the said order which was also dismissed.

6. Hence, the instant writ petition.

7. It is submitted by the learned Advocate for the petitioner that the petitioner was examined at Nalanda Excise Office by breathe analyzer to ascertain as to whether he consumed alcohol or not. However, neither blood nor urine test of the petitioner was done and without examining the urine and blood of a person, this can not be ascertain as to whether the petitioner consumed prohibited alcohol or not.

8. It is also submitted by the learned Advocate for the petitioner that during inquiry, the petitioner submitted that he had not taken alcohol, rather used homeopathy medicine, but the inquiry officer failed to consider such explanation. The petitioner was dismissed only on the basis of the breathe analyzer report, submitted by the Excise Officer of Nalanda.

9. The learned Advocate on