Justice Satyavrat Verma quashes order of Excise Court No.1, Gaya under Bihar Prohibition & Excise Act, grants relief to Aditya Kumar

Taking note of the submissions made by the suspended IPS officer, Aditya Kumar, the petitioner and the fact that the police submitted final form exonerating him of the charges, Justice Satyavrat Verma of Patna High Court quashed the order of Court of Exclusive Excise Court No. 1, Gaya in Fatehpur dated April 20, 2023 in P.S. Case No. 312 of 2022  whereby cognizance of the offences under Sections 51 and 52 of the Bihar Prohibition and Excise Act, 2016 was taken. He found that prima facie, no offence under Sections 51 and 52 of the Excise Act is made out and the reason assigned by the trial court in taking cognizance are erroneous. The 6-page long High Court's order was passed on September 8, 2023. 

The allegations as made in the FIR was that on March 26, 2021, 170 litres of country-made liquor was recovered from a Santro car but no FIR was lodged by Sanjay Kumar, S.H.O., Fatehpur Police station and the petitioner did not take any step to get the FIR instituted, further on instruction of the senior police officer, the FIR being Fatehpur P.S. Case No. 112 of 2021 dated 13.04.2021 was registered. 

It also came to light that the petitioner had initiated disciplinary proceedings against Sanjay Kumar, the then SHO, Fatehpur for lodging the FIR with delay and punished him with censure, further that the aforesaid facts indicated towards the illegal activities of Sanjay Kumar, the then SHO, Fatehpur and the action taken by the petitioner against him. This indicates illegality and irregularity of the SHO. But he ended up implicating the petitioner. 

From the perusal of the allegations as made in the FIR, it is manifest that even if the allegations are accepted on its face value, even then no criminal offence is made out against the petitioner or any offence under Sections 51 and 52 of the Bihar Prohibition and Excise Act, 2016. 

Notably, in his order, the Additional Sessions Judge-cum- Exclusive Special Judge, Excise Court No.1, Gaya wrote, "Acording to legal maxim 'Ignorantia facti doth excusant, Ignorantia juris non-excusant' and it is found in section 76 and 79 of the Indian Penal Code, and it states that a person who commits an offence in the view of a mistake of fact and in good faith that he was bound by law, will not be considered as an offence but "mistake of law" is nothing but misunderstanding the law, which is not valid defence, except for kids, lunatics and mad persons. It is assumed that everyone knows and understands the law of nation. Hence final form submitted under mistake of law is not acceptable."

The petitioner pointed out that the reason assigned by the Additional Sessions Judge-cum- Exclusive Special Judge, Excise Court No.1, Gaya is completely erroneous. He submitted that what escaped the attention of the Additional Sessions Judge is that the police, after investigation, submitted final form by recording that the institution of the case was a mistake of law and it is not the case of the police that the petitioner committed any act on account mistake of law. It made the reasoning given by the trial court in his order vulnerable.

Justice Verma relied on the submission of the State made in the counter affidavit filed by the Additional Director General of Police (Prohibition), Head Quarter, Bihar. The State could not rebut the submissions of S.D. Sanjay, the senior counsel for the petitioner who contended that the police after investigation submitted final form in the case after threadbare investigation and that offence under Sections 51 and 52 of the Excise Act, 2016 in the nature of allegation as alleged in the FIR is not made out as it is not the case of the prosecution that the petitioner deliberately did not act.