Anirudh Mukhiya @ Anirudha Mukhiya v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.2778 of 2019 Arising Out of PS. Case No.-97 Year-2016 Thana- BAUNSI District- Araria ====================================================== Anirudh Mukhiya @ Anirudha Mukhiya S/o- Late Raghu Mukhiya Resident of Village- Bounsi Basaithi, P.S.- Bounsi, District- Araria. ... ... Appellant/s

Versus

The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s :

Mr. Md. Naushad Uzzoha, Adv For the Respondent/s :

Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER 12-11-2024 Heard the parties.

2. The present appeal has been preferred against the judgment of conviction and order of sentence dated 15.06.2019 passed by learned 2nd Additional Sessions Judge cum Special Judge, Excise Act, Araria in Special Case No. 140 of 2017 arising out of Bounsi P.S. Case No. 97 of 2016 whereunder the appellant has been convicted under Section 37(b) of the Bihar Prohibition and Excise Act 2016 and has been sentenced to pay a fine of Rs. 50,000/- and in default thereof, the appellant shall undergo rigorous imprisonment for a term of three months.

3. As per the prosecution case, the police arrested the appellant in drunken condition and took him to Sadar Hospital Araria for medical examination. The Doctor examined the person and found that he has taken liquor.

Patna High Court CR. APP (SJ) No.2778 of 2019(6) dt.12-11-2024 2/3

4. The charge was framed under Section 37(b), Excise Act against the accused/appellant on 18.06.2018.

5. Learned counsel for the appellant has relied upon a judgment of this Court in the case of Manju Devi vs. The State of Bihar & Ors. (CWJC No. 2590 of 2022) and has submitted that breath analyzer report is not a conclusive proof of consuming liquor by a person. The appellant has also relied upon a judgment of the Hon'ble Supreme Court in the case of Bachubhai Hassanalli Karyani Vs. State of Maharashtra reported in 1971(3) SCC 930 and has submitted that the consumption of alcohol can only be ascertained by way of blood and urine test of a person suspected to have consumed alcohol.

6. Learned counsel for the appellant submits that in the present case, the blood and urine samples of the appellant was never taken and therefore, the appellant cannot be convicted and sentenced only on the basis of the breath analyzer report.

7. Learned Special P.P. has opposed the application of the appellant.

8. I have considered the submission of the parties. From the facts of the case, it is clear that the appellant has been held to have committed the offence only on the basis of a breath analyzer test. The blood sample of the appellant was not

Patna High Court CR. APP (SJ) No.2778 of 2019(6) dt.12-11-2024 3/3 taken and there is no conclusive proof that the appellant has been found to be using illicit liquor.

9. In these circumstances, the conviction of the appellant cannot be held to be legal. Once it is held that the appellant was not found to have consumed illicit liquor, then the conviction and sentence of the appellant cannot be sustained.

10. Accordingly, this appeal is allowed and the judgment of conviction and order of sentence dated 15.06.2019 passed by learned 2nd Additional Sessions Judge cum Special Judge, Excise Act, Araria in Special Case No. 140 of 2017 arising out of Bounsi P.S. Case No. 97 of 2016 is hereby set aside.

(Sandeep Kumar, J) kiran/- U T