Kanhaiya Sawarnkar @ Mukesh Kumar Swarnkar vs The State of Bihar

Date : 10-08-2026 Heard learned counsel for the appellant and learned A.P.P. for the State.

This appeal has been filed challenging the judgment of conviction dated 25.07.2019 and order of sentence dated 27.07.2019 passed by the learned Additional Sessions Judge-II-cum-Special Judge (Excise), Supaul in Special Trial (Excise) No. 908 of 2017 arising out of Supaul P.S. Case No. 623 of 2017 whereby and whereunder this appellant has been convicted for the offence punishable under Section 37(c) of the Bihar Prohibition and Excise Act, 2016 and has been sentenced to undergo imprisonment for five years and pay a fine of Rs. 1,00,000/- and in case of default of payment of fine, to further undergo imprisonment for a period of one year.

The prosecution case, in brief, is that on 17.10.2017 at about 4:00 P.M., while patrolling near Hussain Chowk in Supaul, the informant, a police personnel, noticed the appellant in an intoxicated condition, creating a commotion. Thereafter, the appellant was apprehended and subjected to a breath-analyser test, which recorded an alcohol level of 251 mg/100 ml. On the basis of the said reading, it was alleged that the appellant had consumed alcohol, pursuant to which Supaul P.S. Case No. 623 of 2017 was instituted.

In this case, in order to bring home guilt of the accused person, the prosecution has examined four witnesses. P.W. 1, namely Harendra Mishra, is informant of the present case and has supported the prosecution case. P.W. 2, namely Kamal Ram, is the Investigating Officer of the present case. P.W. 3, namely Baiju Kumar Singh and P.W. 4, namely Upendra Paswan, are homeguards, members of the patrolling party and have supported the prosecution case. The prosecution has also adduced documentary evidences, which are as follows:-

On the other hand, the defence has not produced any oral or documentary evidence.

After hearing the parties, the learned trial court convicted the appellant and sentenced him, as indicated in the opening paragraph of this order.

Learned counsel appearing for the appellant submits that the impugned judgment of conviction and order of sentence suffer from several infirmities. It is submitted that all the prosecution witnesses examined in the present case are police personnel and that no independent witness has been examined on behalf of the prosecution. It is next submitted that no incriminating article was recovered from the possession of the appellant and that his conviction rests solely on the breath-analyser report. Except P.W. 1 (the informant) none of the other prosecution witnesses has claimed to have direct knowledge of the numerical reading recorded during the breath-analyser test. It is further submitted that no urine or blood sample of the appellant was drawn for the purpose of corroborating or verifying the breath-analyser result. Apart from the aforesaid discrepancies, it is also contended that there has been non-compliance with the statutory mandate governing search and seizure. Thus, it is a case of no evidence and prosecution has failed to prove the case beyond reasonable doubt and hence, the appellant is fit to be acquitted.

On the other hand, learned Additional Public Prosecutor for the State has submitted that there is no need of any interference in this appeal and there is no reason to differ with the findings of the learned trial court and the judgment of conviction and order of sentence are justified and legal.

Having heard learned counsel for the parties and upon perusal of the materials available on record, this Court finds that all the prosecution witnesses examined in the present case are police personnel. Though the prosecution alleges that the appellant was creating a nuisance in an intoxicated condition in a public market, no independent witness has been examined to corroborate the said allegation. The absence of any independent witness assumes significance, particularly when the prosecution case rests substantially upon the alleged result of the breath analyser test. Furthermore, the evidence of the prosecution witnesses with regard to the breath-analyser test does not inspire confidence. P.W. 3 has categorically stated that he did not see the breath analyser, whereas P.W. 4, though stating that he had seen the machine, has admitted that he could not state the reading recorded therein. Thus, there is no consistent and reliable evidence from the prosecution witnesses, except that of the informant, with regard to the actual reading recorded by the breath analyser. These material inconsistencies cast a doubt upon the versacity of the breath analyser result.

It is further evident from the record that no incriminating article or any quantity of liquor was recovered from the possession of the appellant. The conviction of the appellant, therefore, rests essentially upon the alleged reading of the breath analyser. It is significant to note that no urine sample or blood sample of the appellant was drawn or subjected to examination so as to independently corroborate the alleged consumption of alcohol. In this regard, reliance can be placed upon the decision of a Co-ordinate Bench of this Court in Manju Devi vs. The State of Bihar & Ors. passed in CWJC No. 2590 of 2022, wherein it has been held that a breath analyser report, by itself, cannot be treated as conclusive proof of consumption of liquor by a person. The Hon’ble Supreme Court, in Bachubhai Hassanalli Karyani vs. State of Maharashtra reported in (1971) 3 SCC 930 has also considered the evidentiary value of tests conducted for determining alcohol consumption and emphasised the significance of scientific examination, including blood and urine tests, in determining the presence of alcohol. In the facts of the present case, the prosecution has not brought on record any such corroborative scientific evidence.

Upon an overall consideration of the evidence and the materials available on record, this Court finds that the prosecution has failed to establish the charge against the appellant beyond reasonable doubt. The evidence with regard to the alleged breath analyser reading suffers from material infirmities, there is no independent witness to corroborate the prosecution version and no blood or urine sample was collected to independently substantiate the allegation of consumption of alcohol. The cumulative effect of these deficiencies creates a reasonable doubt regarding the prosecution case. It is a settled principle of criminal jurisprudence that where two views are reasonably possible on the evidence available on record, the view favourable to the accused must be adopted. Thus, this Court finds that the appellant is entitled to be given the benefit of doubt.

In that view of the matter, the judgment of conviction dated 25.07.2019 and order of sentence dated 27.07.2019 passed by the learned Additional Sessions Judge-II-cum-Special Judge (Excise), Supaul in Special Trial (Excise) No. 908 of 2017 arising out of Supaul P.S. Case No. 623 of 2017 are hereby set aside.

Accordingly, appellant, above named, is acquitted of all the charges and is discharged from the liability of the bail bond in connection with this case.

Accordingly, this appeal stand allowed.

Interlocutory application/s, if any, also stands disposed off.