Can Police subject all the advocates visiting courts and police stations to breath analyser test?
Patna edition of The Times of India, Dainik Bhaskar, Prabhat Khabar, Dainik Jagran, News4Nation, Deshaj Times, InsierLive, Patna Press, Live Cities, Khabar Point and Star TV Bihar published and broadcasted fake news regarding advocates of Patna High Court being drunk while making their submission before the court of Sub Divisional Judicial Magistrate (SDJM) on the Sunday night of July 27, 2026 at the Chhajjubagh Judges’ Residence Complex hall under Kotwali police station area. The two advocates, Aakash Keshav, a practicing advocate for 11 years and Varti Kumar, a law graduate were arrested, detained and handcuffed on false charge of being intoxicated. Do the legal reporters of these news outlets know that Supreme Court and High Court have reiterated on several occasions that a breath analyzer test cannot be treated as final proof of alcohol consumption?
Are these legal reporters multipurpose reporters without even an iota pf legal education? Without legal training how can they report about court procedure and the judicial process? The
legal reporters of the media houses in question do not appear to be law
graduates. Do these newspapers have the copy of the FIR which was
registered against the advocates?
Are they aware of the standard procedure required for subjecting anyone to breath analyzer test? Did they inquire as to whether the breath-analyzer equipment was in calibrated state before the advocates were subjected to to it? Did the police officers concerned ensured that ‘Air Blank Test’ was conducted and ‘0.000’ reading shown on the instrument before subjecting the advocates to the breathalyser test for drunken driving. The primary goal of a blank test is to verify that the breathalyser is functioning correctly and is not influenced by any residual alcohol from previous tests. Therefore, it is mandatory to conduct an Air Blank Test and ensure that the calibration is at ‘zero’ before taking a breath sample using a breath alcohol testing device. The police failed to ensure that the calibration of the device showed ‘zero’ before conducting the breathalyser test. The authenticity and acceptance of the breath analyzer test is dependent on the blank test reading being at ‘0.000’ when the test was conducted. A breathalyser is a diagnostic device that measures the content of alcohol in the air a person breathes out. The purpose of conducting an Air Blank Test is to check for any residual alcohol before taking a breath sample from a person using a breath alcohol testing device. The primary purpose of an Air Blank Test is to avoid wrong results during the breathalyser test. If alcohol remains in the device from a previous test, it could falsely elevate the subsequent test result of another individual.
Contrary to the police version published in these news reports in
manifest breach of the golden rule of the 5 Ws and one H of journalism and reporting about
court proceedings, the reporters of these media groups parroted the information planted by the police without gathering all basic
facts. The golden rule of the 5 Ws and one H stands
for Who, What, When, Where, Why, and How. Who pertains to identifying the people, groups, or characters involved in the story in question.What explains the
event, action, or core problem that took place.When establishes the
time, date, or schedule of the event. Where pinpoints the physical or
virtual location.Why explores the reasons, root causes, or motivations
behind the situation. How provides details the method, process, and sequence. These six questions were necessary to ascertain the veracity and authenticity of the claims made by the police. The reporters failed to take the version of Advocate Aakash Keshav and Vrati Kumar, a law graduate before doing their stories and relied solely on the police version. They failed to get the version of SDJM with regard to the claims made by the junior police officials.
Disputing the police version presented by media, the version of Advocate Aakash Keshav is as under:
"On Sunday at around 10:00 PM, I came to know that several young adults had been arrested and were under detention. Upon receiving this information, Mr. Vrati Kumar, a lawyer-cum-social activist and also a Member of PUCL and I, first went to Rupaspur Thana, where we were informed that people were detained at Gandhi Maidan P.S. We then moved to Gandhi Maidan P.S., from where we learned that the detainees were being presented before the Magistrate at Chhajju Bagh. We therefore went to Chhajju Bagh, at the Judges' residence, whereI saw a line of detained students being made to appear before the SDJM. Many of them were injured and not physically fit, but all were being remanded without being told the specific charges against them.
I appeared in court in my uniform as an officer of the court and, in a firm voice, asked one of the students being produced before the court for his name, which he gave to the court. I then asked him, in open court, whether he had been informed of the charges for which he was being presented, to which he answered in the negative. I then asked him whether a copy of the FIR had been provided to him, to which he again answered in the negative. I thereafter raised an objection in court that each of the detainees be provided a copy of the FIR, that whatever they stated in court be recorded — i.e., their depositions be recorded — and that the entire court proceedings also be recorded. Upon my raising this objection, several police officers and some other persons in plain clothes began objecting, whereupon I and other lawyers present objected in turn and submitted that we were making our submissions before the learned Magistrate.
The SHO, Gandhi Maidan, then stated, very vindictively, that since he had been badly injured during the protest, everyone involved must go to jail. I once again objected and told him that I was also concerned about his injuries and had every sympathy for him, but that sending all the students into custody would not help matters. All these statements and objections made by me were heard by the learned Magistrate, but owing to the aggressive behaviour of the officers present, the argument grew heated between the officers and the advocates, following which the SHO became violent, started pushing us, and cornered us. He stated that many persons present in court were under the influence of alcohol and instructed that the doors of the premises be locked so that everyone would be confined there, and told Vrati and me, in a vindictive tone, that he would send us to prison. He then said that he would specially arrange a device for me and ensure that I was prosecuted and punished. It was an open court, and without any direction from the Magistrate, he detained us and had someone brought in a breath analyser — again without any instruction from the court. He then forced Mr.
Vrati Kumar and I to blow into the same machine, without it being
inspected or a fresh mouth piece being opened in front of us and without permission being taken from the court. No blood or urine test was conducted thereafter, and we were detained solely on the basis of the breath analyser reading.
I requested that we be presented before the Magistrate, which he refused, stating that he had the right to detain us for 24 hours and that he would take us to the police station and detain us there. He then forced us into a police car and took me to Kotwali Police Station. We were detained there the entire night, and in the morning we were handcuffed and taken to the hospital, where we were declared physically and mentally fit. From there, we were taken back to Kotwali Police Station. Upon the arrival of the SHO, Kotwali, we requested him to remove the handcuffs, but instead we were shifted to another room, away from public view. At around 2:00 PM, we were made to sit in an auto-rickshaw, still handcuffed, and taken to the Patna Civil Court premises. There, we again requested that the handcuffs be removed, as per the rules, but we were once again paraded in handcuffs within the court premises. On seeing this, many advocates gathered, and it was only under pressure from my fellow colleagues that the handcuffs were removed. We were thereafter presented before the Learned Special Judge (Excise), from where we were released on a personal bond. After our release, the police authorities released our photographs from the arrest memo to the media, and it was reported in the news media that we was drunk and had behaved badly with a lady judicial officer.
A serious point of concern is that the lady Magistrate was harassed and sidelined by the police officer, particularly the SHO, Gandhi Maidan, who acted beyond his jurisdiction and, without the permission of the learned court, acted with malice and vendetta, and dared to remove an officer of the court for raising his voice regarding the conduct and manner in which the students were being sent into custody. A deliberate attempt is being made to tarnish our image by implicating us in an excise case."
In
The State of Bihar through the Home Secretary, Bihar, vs. Dharmraj Singh @ Dhamraj Singh (2026,) Patna High Court's Division Bench delivered a 10-page long
judgement dated July 9, 2026, wherein, it observed: "15. So far as the breath analyzer report is concerned, its admissibility in evidence is one thing, while its probative and conclusive value stands on a different footing" before concluding that Bihar government's decisions are legally unsustainable and upheld teh judgement of the Single Judge against the respondents including the Director General-cum-Inspector General of Police, Bihar and the Additional Director General of Police, Bihar, Patna.
In Manoj Kumar Thakur vs. State of Bihar & Ors. (CWJC No. 4181 of 2021), in a landmark decision delivered on June 25, 2025, Justice Harish Kumar of Patna High Court, reinstated a government employee who had been dismissed based solely on a Breath Analyzer Test without corroborating blood or urine tests. Justice Kumar relied on the decision in Jawahar Kumar Singh v. State of Bihar [2019(2) PLJR 156], wherein, dismissal based only on a Breath Analyser test was set aside as excessive and legally unsustainable. He also referred to Supreme Court’s decision in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [(2013) 10 SCC 324], wherein, the Court held: “The Breath Analyzer Test, which formed the sole basis for the charge of alcohol consumption, cannot be treated as conclusive proof in the absence of a blood or urine test, which is medically and legally required to substantiate such allegations."
The Patna High Court has reiterated the Supreme Court's verdict that a breathalyser (breath analyzer) test cannot be considered conclusive proof of alcohol consumption. In the case of Manju Devi vs. The State of Bihar & Ors. (CWJC No. 2590 of 2022), it has been held that breath analyzer report is not a conclusive proof of consuming liquor by a person. The Supreme Court in the case of Bachubhai Hassanalli Karyani vs. State of Maharashtra reported in 1971(3) SCC 930 concluded 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 Manoj Murmu vs. State of Bihar Criminal Appeal (SJ) No. 848 of 2023, Patna High Court set aside a conviction under Section 37 of the Bihar Prohibition and Excise Act, 2016 read with Rule 18(4) of the Bihar Prohibition and Excise Rules, 2021 by its judgement dated August 19, 2025. The case arose from an Excise Non-FIR No. 370 of 2022 (Katihar), where the appellant was allegedly found drunk based solely on a breath analyzer test conducted by the very officer who also acted as the informant and the investigating officer (IO). The appeal foregrounded three core questions: (i) whether the breathalyzer result alone, without blood/urine testing, could conclusively prove “consumption” for the offence under Section 37; (ii) whether the breathalyzer printout is an “electronic record” requiring mandatory certification under Section 65B of the Indian Evidence Act, 1872;crystallizes three interrelated rules for prohibition prosecutions and electronic evidence. The Court has concluded that breathalyzer outputs are electronic records; without strict Section 65B certification by a competent responsible official, they are inadmissible or carry negligible probative value. Breathalyzer readings alone are not conclusive proof of “consumption” under Section 37 of the Bihar Prohibition and Excise Act; clinical corroboration (blood/urine) significantly strengthens the prosecution, and may be decisive where breath evidence is otherwise infirm.
Notably, in The State of Bihar vs. Narendra Kumar Ram, Supreme Court is examining the constitutional validity of Sections 37 and 75 of the Bihar Prohibition and Excise Act, 2016 in a case which arose from a ruling of the Patna High Court, which had quashed an FIR registered against an individual accused of consuming alcohol in violation of the State’s prohibition law. According to the case record, the individual was found at his residence in Kishanganj and subjected to a breath analyser test, which indicated an alcohol concentration of 41 mg per 100 ml. Based solely on this result, he was arrested and an FIR was registered under Section 37 of the 2016 Act.
Are the legal reporters who reported about the so-called drunken state of advocates aware that on November 28, 2025, the Union Ministry of Consumer Affairs, Food and Public Distribution notified the Legal Metrology (General) Sixth Amendment Rules, 2025. It amended the Legal Metrology (General) Rules, 2011. The amended provisions came into effect on April 4, 2026. The amendment has introduced a new Part in the Legal Metrology (General) Rules, 2011.
Part XIII relates to the Evidential Breath Analyser. Evidential Breath Analysers are quantitative instruments which provide a measurement result of alcohol concentration in exhaled human breath. They are used for the purpose of establishing compliance, for fighting against alocohol abuse and advancement of public safety. These instruments are the principal means by which a definitive alcohol measurement is obtained and are considered “evidential”. Here, alcohol will refer to ethyl alcohol or ethanol in a broader context, but, when dealing with test gas compositions, the exact chemical terminology for each substance will be applied.
Breath analysers should have the following special features: prohibit the displaying or reporting of results that do not represent the final measurement result; mandating the inclusion of a printing device; prohibiting operation of the analyser when no paper is detected in the printing device; requiring further printed information in addition to the final measurement result;requiring final measurement results to be displayed and reported in terms other than the alcohol content in exhaled human breath (that is, physiological conditions such as percentage of blood or in terms of other quantities). The scope of this specification will be limited to the types of breath analysers that use mouthpieces for sampling the breath.
Schematic Description of Instrument: It provides a means for sampling and then measuring the alcohol content of a sample of end expiratory breath of a human being; It means for conveying the breath sample through the sampling system depends on the kind of alcohol sensor used in the specific EBA; Incorporated into the sampling system is an alcohol sensor which analyses the breath sample and provides signals related to the concentration of alcohol; The sensor signals are then electrically processed to display the results of a measurement in mg/L or another prescribed SI unit; It has a means to check whether the conditions for the acceptance of a breath sample are fulfilled.
Description of sampling and mouthpiece: A specimen of an end expiratory breath sample from a continuous and uninterrupted expiration shall be analysed for alcohol concentration and the breath sample will not be influenced by breathing techniques; It will be be capable of being used under satisfactory hygienic conditions and the use of individually packaged, replaceable mouthpieces for each measurement shall be indispensable.
Measuring range: It will be from 0.00 mg/L to at least 2.00 mg/L; A higher upper limit of the measuring range will be defined by the manufacturer; It will indicate when its upper limit of measurement is exceeded with the mention of the value of the upper limit for example —result > 2 mg/L; It will fulfill the requirements of this specification for the complete specified measuring range. Masking of low results will be deactivated in the metrological test mode. The Evidential Breath Analysers will be fitted with a printing device, internal or external.
Parameters that will be recorded for all tests: Date and time; Ambient temperature; Ambient relative humidity; Ambient pressure; Values of the measured; Indications and errors; Functional performance; and correct printout of the internal printer.
The union government has approved four types of devices for the purpose of obtaining an indication of the presence of alcohol in a person’s blood by means of a test carried out on one or more specimens of breath provided by that person for the purpose of a breath test. Breath Analysers contain three distinct parts – body, plastic mouth piece and a disposable straw to be used with mouth piece. The person who is suspected to have consumed alcohol is requested to blow into the straw. At this time the mouth of the person comes in contact with the straw of the Breath Analyser. Hence the straw should be disposed of as soon as the test is over. The same straw should not be used more than once as the use of the same straw by different persons is not desirable.
A preliminary or passive test is carried by holding the instrument (breath analyzer) close to the mouth and asking name of the person or to blow which indicates consumption of alcohol (passive test). If the result is negative, no further check is required. If the result is positive, breath sample is taken using the disposable straw and the print out taken using connected printer.
The
legal reporters of the media houses in question do not appear to be law
graduates else they would have known that breath analyzer tests are not conclusive proof? Have they been trained to report court proceedings?
Will Courts, Bar Councils and bar associations also subject police to breath analyser test when they visit courts?
Recently, Telangana High Court had asked the police in question as to under what authority of law he had subjected an advocate, who visited the police to inquire about a case, to breath analyser test. In Bihar too, they are likely to face similar questions in the High Court.
