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2025 Supreme(Pat) 587
IN THE HIGH COURT OF JUDICATURE AT PATNA
ALOK KUMAR PANDEY, J.
Criminal Appeal (SJ) No. 848 of 2023
(19.8.2025)
Manoj Murmu @ Manoj Murmur ... Appellant
vs.
State of Bihar ... Respondent
For the Appellant : Mr. Ankesh Bibhu, Amicus Curiae.
For the Respondent: Mr. Zeyaul Hoda, A.P.P
Headnote:
Bihar Prohibition and Excise Act, 2016 (with Amendment Act, 2022) – Section 37 read with Bihar Prohibition and Excise Rules, 2021 – Rule 18(4) – Appellant was said to have found in drunken condition – Discrepancies found in the case are, (i) regarding the place of occurrence apart from the appellant; (ii) regarding presence of others at the place of occurrence and place of occurrence was not identified; (iii) appellant was not tested at the place occurrence and place of occurrence was not identified; (iv) breath analyzer test was not conclusive in the absence of any urine or blood test; and (v) there is vital contradictions in the statements of P.W. 1 and P.W. 2 on the point of presence of other persons apart from the appellant at the place of occurrence – All the discrepancies make the prosecution story doubtful on the basis of materials available on record – The learned Trial Court fell in error law as well as appreciation of facts of the case in view of settled criminal jurisprudence – Impugned judgment of conviction and sentence set aside – Appeal allowed. (Paras 26, 27 and 28)
Bachubhai Hassanalli Karyani Vs. State of Maharashtra, 1971 (3) SCC 930; Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal, 2020 (5) BLJ 28 (SC) : (2020) 7 SCC 1; Megha Singh Vs. State of Haryana, (1996) 11 SCC 709; Bhagwan Singh Vs. State of Rajasthan, (1976) 1 SCC 15; State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamilnadu Vs. Rajangam, (1976) 1 SCC 15; Mohan Lal Vs. State of Punjab, 2018 (4) BLJ 215 (SC) : (2018) 17 SCC 627—Relied.
Key Points: - There are discrepancies noted about the place of occurrence and identification of place, absence of proper identification by the investigating officer, and absence of independent witnesses (!) (!) (!) (!) . - The breath analyzer evidence is challenged as not conclusive without urine or blood tests and questions are raised about certification under Section 65-B and the training/qualification of the officer administering the test (!) (!) (!) (!) (!) (!) (!) (!) (!) . - The investigation is critiqued for the informant also acting as the investigating officer, raising concerns about fair investigation and potential miscarriage of justice; authorities discuss established principles requiring a separate independent investigating officer (!) (!) (!) (!) (!) (!) . - The appellate court concluded that the prosecution's case is doubtful due to the above infirmities and set aside the conviction and sentence (!) . - The record includes specific enumerated discrepancies identified as (i) place of occurrence, (ii) presence of others, (iii) testing at the place, (iv) conclusive nature of breath test, (v) contradictions between witnesses (!) (!) (!) (!) (!) (!) . - The defense emphasized lack of material for blood/urine testing and unreliability of breath analyzer in absence of corroborating tests (!) (!) (!) . - The judgment references the necessity of Section 65B certification for electronic records and clarifies the role of the certifying official and the admissibility prerequisites (!) (!) (!) (!) (!) (!) (!) . - The court’s ultimate finding is that the trial court erred and the appeal is allowed, with records returned to trial court (!) (!) .
What is the adequacy of place of occurrence and presence of others at the place of occurrence in proving the case?
What is the admissibility and reliability of breath analyzer evidence under Section 65-B of the Evidence Act in this context?
What are the rights of fair investigation and concerns about the informant as investigator impacting the prosecution's case?
Alok Kumar Pandey, J. – Heard the parties.
2. The present appeal has been directed against the judgment of conviction and order of sentence dated 04.01.2023 passed by learned A.D.J-Cum-Spl. Judge, Excise Court No.1, Katihar in connection with Excise P.S. Non F.I.R No. 370 of 2022 whereby and whereunder the appellant has been convicted for the offence punishable under Section 37 of Bihar Prohibition and Excise Act read with Rule-18(4) of Bihar Prohibition and Excise Rule, 2021 and has been pleased to sentence him to undergo simple imprisonment for a period of one year. Period undergone during the trial was directed to be set off.
3. As per prosecution case, the appellant was said to have found in the drunken condition on the basis of breath analyzer test.
4. On the basis of prosecution report, Excise P.S. Non F.I.R No. 370 of 2022 was registered under Section 37 of Bihar Prohibition and Excise Act, 2016. Routine investigation followed. Statement of witnesses came to be recorded and on the completion of investigation, charge sheet has been submitted against the appellant under section 37 of Bihar Prohibition and Excise Act, 2016. Thereafter, on 09.11.2022 the learned trial court took cognizance against the appellant under the aforementioned section. Charge was framed against the appellant on 18.11.2022 and after hearing the parties, acquisition has been explained to the accused in Hindi for the said offence to which he pleaded not guilty and claimed to be tried.
5. After closing the evidence, statement of witnesses under Section 313 Cr.P.C of appellant has been recorded on 12.12.2022 where he denied the charges and claimed innocent and it was admitted that earlier he was arrested in non FIR Excise P.S. Case No. 284 of 2022 dated 14.10.2022 for the consumption of liquor and released from court after depositing the fine.
6. During course of trial, prosecution has examined two witnesses. P.W-1, Pawan Kumar Yadav, who is informant and investigating officer of the Case and P.W-2, Tala Hansda, who is police official.
7. Prosecution has relied upon following documentary evidence on record: –
Exhibit P1/1- Breath Analyzer Report and Certificate under Section 65 B Indian Evidence Act.
Exhibit P2- Arrest Memo
Exhibit P2/1-Signature of witness on arrest memo
Exhibit P3-Self Written Statement.
Exhibit P4-Form VI.
8. Learned counsel of behalf of appellant has submitted that neither P.W. 1 nor P.W. 2 has made any statement with regard to description of the place of occurrence. In this way, place of occurrence is not proved and if place of occurrence is not proved, the genesis of case cannot be proved by prosecution. The counsel of appellant has submitted that informant has become investigating officer and no reason has been assigned as to why informant has become investigating officer and the appellant has been prejudiced thereby. Learned counsel on behalf of the appellant has submitted that it is admitted fact that informant is not expert and he has used the breath analyzer for testing the appellant which is beyond the stretch of imagination for putting allegation upon the appellant for which no substance is available with the informant and it has been submitted that breath analyzer test is not a conclusive test. Hon’ble Supreme Court in the case of Bachubhai Hassanalli Karyani Vrs. State of Maharashtra reported in 1971 (3) SCC 930, has 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 pupiles were dilated. Consumption of alchol can only be ascertained by way of blood and urine test by a person suspected to have consumed alcohol.”
9. Learned counsel for the appellant further submits that in the present case, there was no material information which disclosed that either blood or urine test was conducted by the prosecution side to prove the case. In the light of aforesaid facts an
