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12. The learned Sr. Advocate for the State/Respondents, on the other hand, submits that on the basis of the judgement passed by the Hon'ble Supreme Court in Bachubhai Hassanalli Karyani (supra), this Court cannot throw away breath analyzer report as a proof of consumption of alcohol because Section 75 of the Bihar Prohibition and Excise Act, 2016 speaks of power to conduct breath analysis test and medical tests. Section 75 of the Act runs thus:-

"75. Power to conduct breath analysis tests and medical tests - (1) Any of the Officers mentioned in Section 73 may ask any person to undergo breath analysis test and / or such medical tests as he may deem fit.
(2) The person so asked, is duty bound to submit himself to such medical tests or breath analysis test. Should he fails to do so, it shall be presumed that he has committed an offence under Section 37 of the Act and shall be prosecuted accordingly.
(3) The reports of such tests shall be admissible as evidence under the Indian Evidence Act, 1872."

13. The plain reading of Section 75 suggests that an Officer named under Section 73 of the Act may ask any person to undergo breath analysis test and/or such medical tests as he Patna High Court CR. WJC No.1624 of 2022(8) dt.16-01-2025 may deem fit. Sub-section (2) of Section 75 says that if the suspect fails to commit himself to breath analysis test and/or medical test, it shall be presumed that he has committed offence under Section 37 of the Act. Sub-section 3 states that reports of such tests shall be admissible as evidence under the Indian Evidence Act.

14. Thus, it is contended on behalf of the State that the Act does not preclude breath analysis test as means to ascertain as to whether a person has consumed alcohol or not.

15. A close reading of the above-mentioned provision suggests that Section 75 states breath analysis test "and/or"

medical test. The word "and/or" is of paramount importance. If the above-mentioned provision is read as breath analysis test and medical test report, then, both the reports are necessary for holding a person guilty of consuming alcohol even prima facie. If, on the other hand, "or" is read in isolation of "and" therefore either of the report is sufficient to hold an accused guilty for consuming alcohol. Where the Statute has provided both conjunctive and disconjunctive propositions in between two tests, in a criminal trail where proof beyond necessary doubt is essential to be established, the provision is to be read conjunctively and not in disconjunctive fashion. Patna High Court CR. WJC No.1624 of 2022(8) dt.16-01-2025