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Judgment
Date : 20-08-2026 Heard learned counsel for the appellant and learned A.P.P. for the State.
This appeal has been directed against the judgment of conviction and order of sentence dated 21.02.2018 passed in Special Excise No. 179 of 2017/ C.C. No. 83 of 2017 by the learned 2nd Additional District and Sessions Judge-cum-Special Judge, Excise Act, Araria, whereby the appellant has been held guilty for the offence under Section 37(B) of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as “Excise Act”) and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. One lakh and in default of payment of fine, he was sentenced to further undergo simple imprisonment of six months.
The prosecution case, in brief, is that on 11.02.2017, on the basis of secret information, the informant, who was posted as Assistant Sub-Inspector in Excise Department, Araria, along with other officials and armed force, reached at Bhagat Tola, Araria, where it is alleged that after seeing the raiding party, appellant started fleeing. However, the informant apprehended appellant and noticed smell of alcohol from his person. Thereafter, a Breath Analyzer Machine was used for testing the appellant. The test allegedly recorded 25.4 mg/100 ml of alcohol in his body. The Breath Analyzer report was prepared, bearing the signatures of informant and appellant. The appellant was arrested and was produced before the Court for the offence under Section 37(B) of the Excise Act.
On the basis of the prosecution report, Excise Case No. 83 of 2017 was registered and after taking cognizance, charge was framed under Section 37(B) of the Excise Act and the appellant pleaded not guilty and claimed to be tried.
During trial, two witnesses were examined by the prosecution side, who are:
“ P.W. 1 namely Prashant Kumar, who is informant and member of the raiding party, has fully supported the prosecution version.
P.W. 2 namely Suraj Rai was also posted in Excise Department at Araria and member of the raiding party and supported the prosecution case.”
Besides above, prosecution has also adduced documentary evidence, which are as follows:
| Exhibit 1 | Breath analyser report |
| Exhibit 2 | Arrest Memo |
| Exhibit 3 | Forwarding report/application bearing signature of P.W.1. |
Learned counsel for the appellant, while assailing the order of conviction and sentence, contended that the conviction is unsustainable in the eyes of law, as the prosecution has failed to prove the essential ingredients of Section 37(B) of the Excise Act beyond reasonable doubt. He further submitted that all material witnesses are official witnesses belonging to the Excise Department and no independent member of the public has been examined. He further argued that the prosecution relies primarily upon the Breath Analyser Report. There is no medical evidence, such as; blood report, or urine report corroborating the alleged Breath Analyser Result. In support of his submission, learned counsel for the appellant has relied upon a case of Hon'ble Supreme Court in the case of Bachubhai Hassanalli Karyani Vs. State of Maharashtra reported in 1971(3) SCC 930 wherein it was held that the consumption of alcohol can only be ascertained by way of blood and urine test of a person suspected to have consumed alcohol. On aforesaid ground, learned counsel for the appellant has prayed for setting aside judgment of conviction and sentence passed by learned trial Court.
On the other hand, learned APP for the State vehemently opposed the appeal and submitted that the prosecution has proved its case beyond reasonable doubt and the impugned judgment is a reasoned judgment, as the breath analyser test and official witnesses clearly established that the appellant was found in an intoxicated condition. Therefore, the impugned judgment may not be interfered with.
Having heard the submissions made on behalf of the parties and perused the materials available on record. Though, the prosecution witnesses have supported the case on the basis of breath analyser report, none of them have brought forth independent corroborative evidence, and no medical examination was conducted.
From the records, it appears that neither any doctor was examined nor blood or urine samples were obtained or analysed, and no independent public witnesses were examined to support the prosecution case. Furthermore, there is no evidence on record regarding the calibration, accuracy, or technical verification of the breath analyser machine. This Court is in full agreement with the decision of Hon’ble Supreme Court in the case of Bachubhai Hassanalli Karyani (supra), wherein Hon’ble Supreme Court has held that the consumption of alcohol can only be ascertained by way of blood and urine test of a person suspected to have consumed alcohol.
In that view of the matter, I am of the view that the prosecution has not been able to prove the case beyond reasonable doubt.
Accordingly, this appeal is allowed and the judgment of conviction and order of sentence dated 21.02.2018 passed in Special Excise No. 179 of 2017/ C.C. No. 83 of 2017 by the learned 2nd Additional District and Sessions Judge-cum-Special Judge, Excise Act, Araria is, hereby, set aside.
The appellant, Veer Kunwar Singh, is acquitted of the charge under Section 37(B) of the Bihar Prohibition and Excise Act, 2016 by giving him benefit of doubt. The appellant is also waived from liability of paying a fine of Rs. One Lakh, as imposed by the learned trial Court.
Since, the appellant is on bail, he is discharged from the liability of bail-bond in connection with this case.