Sunday, June 23, 2024

Justice delayed is Justice denied, Orders of Divisional Commissioner Koshi Division, Saharsa, District Magistrate, Supaul quashed, set aside by Justice Bibek Chaudhuri, Patna High Court

Justice Bibek Chaudhuri of Patna High Court set aside the orders of Divisional Commissioner Koshi Division, Saharsa and District Magistrate, Supaul in Manju Devi W/o Late Prabhakar Kumar Singh Vs. State of Bihar on June 19, 2024. In this case of the original writ petitioner (since deceased), when he was posted in the office of S.D.O. at Nirmali Police Station, he was apprehended by the S.H.O. of the Police Station on February 5, 2018 based on the allegation that he contravened Section 37 (a) and 37 (c) of the Bihar Prohibition and Excise Act, 2016. After his arrest he was in Judicial custody for few days. As per the relevant provision of the Service Code, the original petitioner was suspended from service as he was in incarceration for more than 48 hours. Subsequently, he was released on bail and on his prayer the order of suspension was revoked and he was directed to join his service. However, on the same ground that he consumed alcohol in contravention of the Bihar Prohibition and Excise Act, 2016 Act, a departmental proceeding was initiated. Simultaneously, a criminal case was also initiated. In the meantime, the District Magistrate, Supaul passed an order in conclusion of the disciplinary proceeding on January 11, 2020.  

The original petitioner had The petitioner had invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. He had challenged the order of the disciplinary authority, whereby the disciplinary authority had dismissed him from his service on the ground that he took a specific defence that at the relevant point of time he was suffering from cold and cough and he took cough syrup containing certain percentage of alcohol and on suspicion he was arrested. It is also stated that no scientific examination was done by the Medical Officer or any other authority to conclusively ascertain as to whether he consumed alcohol or not on February 5, 2018. His blood and urine samples were not taken for examination of percentage of alcohol in his blood or urine. Therefore, on the basis of breathe analyzer report a person cannot suffer major penalty like dismissal from service.

The Court recorded that breathe analyzer report is not a conclusive proof of consuming liquor by a person. It relied on the decision of the Supreme Court in Bachubhai Hassanalli Karyani Vs. State of Maharashtra, reported in 1971 (3) SCC 930, which held that no conclusion with regard to consumption of alcohol by a person can be made on the facts that the appellant’s breathe was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. Consumption of alcohol can only be ascertained by way of blood and urine test by a person suspected to have consumed alcohol.

The Supreme Court had found that the blood and urine examination of the appellant was not done and finally held that mere smelling of alcohol is not enough to hold that the petitioner consumed alcohol on the date of his apprehension.

The High Court noted that in the present case there was also no allegation that at the time of arrest the gait of the original petitioner was unsteady, he was speaking incoherently or that his pupils were dilated. 

Justice Chaudhuri concluded: "I have no other alternative but to hold that the disciplinary authority failed to consider the observation of the Hon’ble Supreme Court and based his order of punishment of the original petitioner of breathe analyzer report which cannot be said to be a conclusive report of consumption of alcohol." The order reads: "This Court is not in a position to uphold the impugned order dated 11th January, 2020, communicated on 15th January, 2020, passed by the District Magistrate, Supaul against the original petitioner as well as the order passed in appeal by the Commissioner based on the order dated 11th January, 2020. Accordingly, both the orders are quashed and set aside."

By the time this judgement was delivered on June 19, 2024, Saharsa resident, Prabhakar Kumar Singh, the original petitioner was dead. The case was filed on February 8, 2022 and registered on February 15, 2022. The original petitioner died on May 19, 2022.

It was only after his death that the case came up for hearing for the first time before Justice Madhuresh Prasad on December 2, 2022 through virtual mode. The order recorded that counsel for the State did not join the virtual Court proceedings. The order reads: "Matter is adjourned to be listed in the physical Court proceedings on 08.12.2022." It was listed on December 8, 2022 but was carried forward and was listed for hearing on December 15, 2022. It was listed on December 15, 2022 but was carried forward and was listed for hearing December 22, 2022. It was listed on December 22, 2022 but was carried forward and was listed for hearing January 12, 2023 but was listed for hearing on November 29, 2023. On November 29, 2023, Justice Mohit Kumar Shah had directed the Registry "to substitute the legal heirs of the deceased petitioner in place of the deceased petitioner" over 18 months after the death of Prabjakar Kumar Singh. Pramod Mishra, Suraj Kumar and Vijay Kumar Mukul are mentioned as the counsels for the petitioner. 

Notably, Advocate Pramod Mishra filed Vakalatnama for Manju Devi, the petitioner on July 6, 2022. The Court's website states that Advocate Pramod Mishra had also filed reply to counter affidavit for the State of Bihar on December 9, 2023. Advocate Babita Kumari had filed counter affidavit on behalf of Respondents, namely, District Magistrate, Supaul, Deputy Development Commissioner, Supaul, Sub- Divisional Officer, Nirmali, Supaul and Circle Officer, Kishanpur, Supaul on November 22, 2022.    

The hearing was adjourned and listed for hearing on December 13, 2023. His wife Manju Devi pursued the case after the death of the original petitioner. It was listed for hearing on January 3, 2024, January 9, 2024, January 16, 2024, January 23, 2024, January 30, 2024, February 6, 2024, February 13, 2024, February 20, 2024, February 27, 2024, March 5, 2024, March 12, 2024, March 20, 2024, April 5, 2024, April 9, 2024, April 16, 2024, April 23, 2024, April 30, 2024, May 16, 2024 and May 17, 2024. 

It is a classic case of justice being denied to the original petitioner due to delay. 

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