Tuesday, January 5, 2021

High Court grappled with cases under Bihar Prohibition and Excise Act in 2020

In 2020, Patna High Court disposed 14,108 civil cases and 1.42 lakh criminal cases till November 30. Numerous cases related to inappropriate implementation of the Bihar Prohibition and Excise Act, 2016 reached the Court throughout the year compelling it reiterate its order time and time again.  

January 2020: In Mohammad Babar v The State Of Bihar, a 3-Judge Bench of Chief Justice Sanjay Karol, Justices Anil Kumar Upadhyay and K.C. Jha on 14 January, 2020, the Court reiterated its earlier orders. It observed "It is continued practice of this Court that in cases of drunken driving; no recovery from the vehicle; recovery of less than commercial quantity; where ex-facie, vehicle is not liable to be confiscated; where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc., this Court has been directing the State to provisionally release vehicle/property, subject to initiation/conclusion/finalisation of the confiscatory proceedings, as the case may be" in the matter of offences punishable under the Bihar Prohibition and Excise Act, 2016.  

It reminded the State that in Diwakar Kumar Singh v The State of Bihar (2018), the Court issued the following directions: "That apart, in the confiscation proceedings, the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act, 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor, whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act, apply his mind and pass a speaking order with regard to confiscation initiated. Without deciding the aforesaid issue as a preliminary issue, further proceedings in the confiscation proceedings shall be prohibited."

It asked "the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar, who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle. It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof, if we find that the District Magistrates are passing confiscation order without addressing this issue first, we may consider initiating contempt proceedings against the concerned District Magistrate."

The Court recalled that in Shobha Devi v The State of Bihar (2019), the Court had observed :"On examination of aforesaid fact, particularly allegation of the petitioner that in a court proceeding before the learned Special Judge, Excise, a false information was given, we are of the opinion that the court of learned Special Judge, Excise would be competent court to pass an appropriate order, in view of provisions contained in Section 340 of the Code of Criminal Procedure, 1973. Accordingly, the petitioner is granted liberty to file appropriate petition before the learned Special Judge, Excise for prosecuting the concerned police official. So far as claim of compensation is concerned, obviously on going through the material on record, since there was no recovery of liquor from the vehicle and it was a case, in which, the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance, though were liable to be arrested. In any event, the vehicle was not required to be seized, since it was not liable to be confiscated." 

For future guidance, where parties have not approached this Court, the Court issue the direction saying "The expression "reasonable delay" used in Section 58 of Chapter VI of the Act, in our considered view, necessarily has to be within a reasonable time and with dispatch, which period, in our considered view, three months time is sufficient enough for any authority to adjudicate any issue, more so, when we are dealing with confiscatory proceedings."

It was hoped that this order authored by the Chief Justice will help in curbing the indiscriminate use of the provisions of Bihar Prohibition and Excise Act, 2016 without application of legal mind by police officials.  

Despite this order of January 2020, the 3-Judge Bench headed by Chief Justice had reiterate his order once again in Sheetal Sahu v The State Of Bihar on 12 October, 2020. It observed: "Be that as it may, at this point in time, we Patna High Court CWJC No.8483 of 2020 dt.12-10-2020 refrain from passing any order under the contempt jurisdiction, but direct the Chief Secretary, Government of Bihar, to file his personal affidavit dealing with each one of the issues highlighted (supra) as also elaborately indicating the mechanism which the State has or desires to evolve so as to prevent the litigants from directly approaching the Court for release of the vehicle and also ensuring early completion of the proceedings, be it confiscatory in nature or in an appellate jurisdiction, under the provisions of the Bihar Prohibition and Excise Act, 2016."

The Court further observed that "Learned counsel for the State undertakes to communicate the order to all concerned, including the District Magistrate and no certified copy of the order shall be required to be placed on the file of proceedings pending or initiated under the Act, for such order is available on the official website of the High Court & can be downloaded and/or verified from there, in the times of current Pandemic Covid-19. We only hope and expect that the Authorities under the Act shall take appropriate action at the earliest and in accordance with law, within the time schedule fixed, failing which the vehicle/property/things liable for confiscation shall be Patna High Court CWJC No.8483 of 2020 dt.12-10-2020 deemed to have been released without any further reference to this Court." The CWJC No. 8483 refers to Sheetal Sahu case. It is apparent that repeated order of the High Court is not being implemented by the police officials. 

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