As part of Division Bench Justice S. B. Pd. Singh authored all judgments dated September 2

Patna High Court's Division Bench of Acting Chief Justice P. B. Bajanthri and Justice S. B. Pd. Singh delivered seven judgements on September 2, 2025.All the judgements dated September 2 by this bench were authored by Justice Singh. 

In Bibek Kumar Jaiswal @ Vivek Kumar Jaiswal vs. Shabnam Jaiswal @ Sabnam Jaiswal (2025), a case from Supaul, Justice Singh held that Family Court rightly dismissed the matrimonial case of the appellant seeking divorce. 

In Nilu Kumari vs. Sanjay Kumar (2025), a case from Hajipur, Justice Singh set  aside the judgement and decree by Principal Judge, Family Court, Vaishali. 

In Shashi Bhushan Poddar vs. Gyan Bharti @ Rekha Poddar & Anr. (2025), a case from Bhagalpur, Justice Singh upheld Family Court's judgement and decree which dismissed the matrimonial case of the appellant seeking divorce. 

In Arun Kumar vs. Sushmita Kumari (2025), a case from Begusarai, Justice Singh set aside judgment and decree by Principal Judge, Family Court, Begusarai, which had dismissed the divorce case. 

In Md. Naushad Hussain vs. Shahida Khaton & Anr. (2025), a case from Darbhanga, Justice Singh concluded:"Considering the fact that Talaq has already been performed between the parties and in the entire evidence, the appellant-husband has not denied the aforesaid assertion of the respondent and the respondent herself does not want to continue matrimonial relationship with the appellant-husband, we are not inclined to interference with the impugned judgment. The Family Court has rightly dismissed the Matrimonial Case No. 209 of 2012 filed on behalf of the appellant husband."   

In Pramod Pasi vs. The State of Bihar through Secretary Excise and Prohibition Department Govt. of Bihar & Ors. (2025), a case from Gopalganj, the Court recorded that the recovery of illicit liquor was only 7.8 litres which is a meager quantity. Justice Singh concluded:"Considering the small quantity of liquor, the concerned authority is hereby directed to collect fine of Rs. 10,000/-(Ten Thousands) from the petitioner and release the motorcycle in his favour within a period of one week from the date of receipt of this order, for which petitioner has no objection." He observed: "We are conscious of the fact that alleged recovery is meager quantity and the aforesaid order has been passed while invoking extra ordinary jurisdiction under Article 226 of the Constitution of India for the reasons that unnecessarily petitioner shall not be subjected to various proceedings like Rule of 12A of the Bihar Prohibition and Excise Rules, 2021 read with amended sub Rule 2 of Rule 12A in the year 2022 and 2023, Sections 58, 92 and 93 of the Bihar Prohibition and Excise Act, 2016, for an issue of 7.8 litres of illicit liquor and such order is required to prevent the multiplicity of proceeding in the interest of justice."

In Yogendra Yadav vs, The State of Bihar through the Principal Secretary, Bihar Prohibition and Excise Department, Bihar & Ors. (2025), a case from Gaya, Justice Singh took note of the fact that the recovery of illicit liquor was only 1 litre which is a meager quantity. He observed: "Considering the small quantity of liquor, the concerned authority is hereby directed to collect fine of Rs. 5,000/-(Five Thousands) from the petitioner and release the motorcycle in his favour within a period of one week from the date of receipt of this order, for which petitioner has no objection." He added: We are conscious of the fact that alleged recovery is meager quantity and the aforesaid order has been passed while invoking extra ordinary jurisdiction under Article 226 of the Constitution of India for the reasons that unnecessarily petitioner shall not be subjected to various proceedings like Rule of 12A of the Bihar Prohibition and Excise Rules, 2021 read with amended sub Rule 2 of Rule 12A in the year 2022 and 2023, Sections 58, 92 and 93 of the Bihar Prohibition and Excise Act, 2016, for an issue of 1 litre of illicit liquor and such order is required to prevent the multiplicity of proceeding in the interest of justice."

Notably, a 17-page long judgement dated September 1, 2025 by the same Division Bench had set aside the judgment and decree dated February 25, 2019 passed by the Principal Judge, Family Court, Gopalganj. This judgement too was authored by Justice Singh.  

 

Supreme Court to examine validity of Section 58 of Bihar Prohibition and Excise Act, 2016 read with specific Rules

In The State of Bihar & Ors. vs. Shankar Baranwal (2025), Supreme Court's bench of Chief Justice B.R.Gavai. Justice K. Vinod Chandran and Justice N.V. Anjaria passed an order dated August 9, 2025. It issued notice as it is all set to to examine validity of Section 58 of Bihar Prohibition and Excise Act, 2016 read with Rules 12 A and 12 B of the Bihar Prohibition and Excise Rules, 2021. Its order reads:"Until further orders, there shall be stay insofar as the direction issued by the High Court to make the payment by the valuer is concerned. The case arose out of impugned 7-pag long final judgment and order dated April 16, 2025 in Shankar Baranwal vs. The State of Bihar & Ors. (2025) passed by the Patna High Court's Division Bench of Justices P. B. Bajanthri and S. B. Pd. Singh. 

The High Court's judgement was authored by Justice Bajanthri. The petitioner had prayed for issuance of writ in the nature of certiorari or any other appropriate writ, order or direction for quashing the order dated January 17, 2022 passed in Excise Revision Case No. 282/2021 by Additional Chief Secretary, Bihar, Patna whereby and whereunder the order dated September 10, 2021, passed in Excise Appeal Case No. 523/2021 by the Commissioner, Excise, Patna and order dated July 17, 2021, passed in Confiscation Case NO. 118/2021 by the District Magistrate, Kaimur at Bhabua, which arose out of Durgawati P.S. Case No. 74/2020 have been confirmed and Safari car bearing Registration No. UP-60V-0160 of the petitioner was confiscated and also for giving direction to release the aforesaid vehicle of the petitioner. 

Justice Bajanthri observed: "It is to be noted not even reference to value of the vehicle purchased and depreciation year wise with reference to any policy or the Government or General Insurance Company. In the absence of assessment and randomly evaluation of vehicle in wholesale is highly deprecated. Irrespective of movable and immovable property cannot be valued with the naked eye by the bureaucrats of the State of Bihar and proceed to undertake auction and causing the state exchequer under loss and for the concerned person. In almost each and every case Motor Vehicle Inspectors are evaluating valuation of the vehicle in wholesale without there being individual assessment of the vehicle or property with reference to evaluation like date of purchase and value of what would be value as on the date of seizure of the vehicle and on the date of auction. 5. Having regard to the facts that one liter of liquor has been seized from the subject matter of vehicle, petitioner shall not be penalized in seizing vehicle and auctioning the vehicle at throw away price and realised amount remitting arbitrary and illegal." 

In the light of these observations, the High Court concluded: "the confiscation order, appellate authority order and revision authority order stands modified to the above extent, while exercising extra ordinary jurisdiction under article 226 of constitution", in order to avoid further legal proceedings. 

Supreme Court stays fresh tender process approved by High Court's Acting Chief Justice led bench

In Medicare Environmental Management Pvt. Ltd.vs. State of Bihar & Ors. (2025), the Supreme Court's Division Bench of Justices Prashant Kumar Mishra and Augustine George Masih issued notice, returnable within eight weeks. Its order dated June 3, 2025 reads:"In the meanwhile, further tender process shall remain subject to the outcome of the present special leave petition." This implies that the judgement of the Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy which approved the fresh tender process has been stayed. 

The Division Bench had heard both the writ petitions filed by Medicare Environmental Management Pvt. Ltd and Sangam Mediserve Pvt. Ltd. who had prayed for setting aside the order dated June 26, 2023 issued under the signature of the Member Secretary, Bihar State Pollution Control Board (BSPCB), Patna, whereby the entire tender dated December 22, 2022, for all the seven locations was cancelled despite the respondents/Board having issued the letter of selection for locations at Muzaffarpur and Bhagalpur in favour of Medicare Environmental Management Pvt. Ltd. and for locations Gopalganj and Purnia in favour of M/s Sangam Mediserve Pvt. Ltd.  The High Court had dismissed both the writ petitions by its 26-page long judgement dated May 7, 2025.

The tender was issued because the BSPCB was of the view that there was need for setting up seven Common Bio-Medical Waste Treatment Facility (CBWTF), one each in Patna, Gopalganj, Madhubani, Purnia, Sasaram, Muzaffarpur and Bhagalpur in accordance with the Bio-Medical Waste Management Rules, 2016. BSPCB took the decision to cancel the entire tender as it was a composite tender (one tender for all the seven locations) and issued fresh tender for each of the locations and not a composite tender. Both the petitioners have challenged the decision as being arbitrary, unreasonable and based on no logic. They have submitted that before cancelling the entire tender, the successful bidders ought to have been issued notice.

One of the two petitioners, Medicare Environmental Management Pvt.  Ltd.  submitted that for one of the
bidders, namely, M/s Sangam Mediserve Pvt. Ltd., the second petitioner having submitted an erroneous and wrongly filled-up financial bid, the entire tender ought not to have been cancelled. The BSPCB had some justification for cancelling the tender with respect to locations at Gopalganj and Purnia, but there would absolutely be no ground for cancelling the entire tender even if it be a composite tender of all the seven locations. 

BSPCB should have segregated the respective tenders and went ahead with the selection of the bidders in whose financial bids there was no problem and which selection was completely unaffected by the wrong bidding of M/s Sangam Mediserve Pvt. Ltd. 

It was submitted that in Government contracts, the authorities are expected to uphold fairness, equality and rule of law while dealing with contractual matters. The “Right to Equality” under Article 14 of the Constitution of India is breached whenever an arbitrary decision is taken. The Court's attention was drawn towards the the decision of the Supreme Court in Mihan India Ltd. vs. GMR Airports Ltd. & Ors. : (2022) 19 SCC 69. In this case, bids were invited for development of a Multi-Model International Passenger Cargo Hub Airport at Nagpur, but before the agreement could be executed with the highest bidder, the bidding process was annulled without any direction for fresh tender process.

The Supreme Court held the view that once the selection of the concessionaire had been declared, then raising objections at the stage of the execution of the concession agreement in the garb of asking clarification with respect to certain formalities, amounted to arbitrary exercise of powers by the authorities, which is not permissible under the law. The Supreme Court relied upon its own judgment in Union of India vs. Dinesh Engineering Corporation : (2001) 8 SCC 491, wherein while dealing with the rejection of the bid of the respondent therein by the Railways in a tender floated for procurement of certain items of spare parts for use in GE governors, the Supreme Court had held that the power to reject bids cannot be exercised arbitrarily; merely because the Railways had the power to do so. Any arbitrary exercise of power to reject bids was held to be violative of Article 14 of the Constitution of India. It was held that held that a public authority, even in contractual matters, should not have unfettered discretion and in contracts having commercial elements. Even though some extra discretion is to be conceded to such authorities. 

In Mihan India Ltd. case, the Supreme Court in para 64 of the decision took note of the decision in City & Industrial Development Corporation of Maharashtra Ltd. vs. Shishir Realty (P) Ltd. : (2002) 16 SCC 527. It reads:“75. Before we state the conclusions, this Court would like to reiterate certain well pertaining to Government contracts. When we speak of Government contracts, constitutional factors are also in play.
Government bodies being public authorities are expected to uphold fairness, equality and rule of law even while dealing with contractual matters. It is a settled principle that right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process. A transparent bidding process is much favoured by this Court to ensure that constitutional requirements are satisfied.
76. Fairness and the good faith standard ingrained in the contracts entered into by public authorities mandates such public authorities to conduct themselves in a non-arbitrary manner during the performance
of their contractual obligations.
77. The constitutional guarantee against arbitrariness as provided under Article 14, demands the State to act in a fair and reasonable manner unless public interest demands otherwise. However, the degree of
compromise of any private legitimate interest must correspond proportionately to the public interest, so claimed.
78. At this juncture, it is pertinent to remember that, by merely using grounds of public interest or loss to the treasury, the successor public authority cannot undo the work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government. Businessmen will be hesitant to enter Government contract or make any investment in furtherance of the same. Such a practice is counterproductive to the economy and the business environment in general.”

Drawing on this principle, the Supreme Court did not approve of such cancellation of tender in its entirety. 

Justice Kumar who authored the judgement of the Division Bench observed:"In the present set of facts in these two writ petitions, the situation is different." The judgement pointed out that the financial bid of M/s Sangam Mediserve Pvt. Ltd., which was found to be L-1 for two locations, namely, Gopalganj and Purnia, was erroneous. Although for the two locations, namely, Gopalganj and Purnia, there was an alternative of declaring the L-2 for those two locations as L-1 but "This could but have led to spate of litigation as many of the contenders/bidders had participated and offered their bids for number of locations."

The judgement reads:"Since it was a composite tender, any wrong assessment of any one of the bidders to be the lowest or the highest for a particular location would have had a cascading/waterfall effect on all the tenders. In the circumstances and in all fitness of things, it appears that the Bihar Pollution Control Board took a decision of cancelling the entire tender process and re-tendering it. To us, the decision does not appear to be arbitrary or fanciful or imbued with any mala fides." 

Referring to both the petitioners, Justice Kumar observed: "The parties never got an opportunity of any investment and it was only at the threshold stage when the agreement would have been entered into by the successful bidders, that this decision was taken." He concluded: "The reason for cancelling the tender, in its entirety, does not appear to us to be arbitrary or mala fide. Whether it is wise or unwise or that a better option could have been exercised by the respondents/Board has not been addressed by us for the reasons of our limitations of the jurisdiction." 

 

Acting Chief Justice led bench sets aside judgement of Justice Mohit Kumar Shah but does not order return of arms and license

In Md. Kaisar Warsi vs. The State of Bihar Through the Home Secretary & Ors. (2025), Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy delivered a 8-page long judgement dated May 12, 2025 setting aside the 13-page long judgement dated September 5, 2023 by Justice Mohit Kumar Shah of the High Court which had upheld orders of District Magistrate, Saharsa and Commissioner, Saharsa regarding cancellation of license under Section 17 of the Arms Act. 

The appellant/writ petitioner was a holder of arms license. On March 19, 2021, he was served with a notice by the District Magistrate, Saharsa asking him to explain within 24 hours as to the number of cartridges purchased and spent for a period of 15 years ranging from 2005 to 2020. It appeared from the notice that in the official records, evidence was available of purchase of 1350 cartridges, the last of the purchases having been made on December 25, 2020. The appellant petitioner replied that over a period of 15 years, the cartridges have been spent on special days as also for checking up the fitness of the weapon and he is in possession of 48 cartridges as on that date. Thereafter, the District Magistrate, Saharsa by his order dated August 5, 2021, assumed that the writ petitioner has violated the condition of not indulging in celebratory firing, cancelled the license of the petitioner. This order was sustained by the appellate authority and both the orders were validated by Justice Shah, the Single Judge of the High Court. The reasoning adopted by him in upholding these orders was that even though proscription on celebratory firing was incorporated in the Arms Act only in the year 2019 but then, an additional condition in the Arms Rules, namely, Sub-Clauses -7, 8 and 9 of Arms Rules of 2016, having been violated, the holder of license lost his right for holding such fire-arm and the District Magistrate, Saharsa was perfectly within his rights to cancel his license under Section 17 of the Arms Act.

The High Court's Division Bench observed:"We are not in agreement with the aforenoted logic and reason provided by the learned Single Judge. Section 17 provides the power to the Licensing Authority to vary the conditions subject to which the license has been granted, except such of them as has been prescribed and may for that purpose require the license holder by a notice in writing to deliver up the license to it within such time as may be specified in the notice. A Licensing Authority may, by order in writing suspend a license for any such period which he thinks fit or revoke a license. If the Licensing Authority is satisfied that the holder of the license is prohibited by the Arms Act or by any other law for the time being in force from acquiring, possessing or carrying any arms or ammunition or is of unsound mind or is for any other reason unfit for a license or if it is necessary for the security of the public peace or for public safety to suspend or revoke the license or if the license was obtained by fraud and suppression of material information or if any of the conditions of the license has been contravened. The license could also be revoked or suspended if a license holder fails to comply with the notice under Section 17 requiring him to deliver up the license. It appears that none of these conditions were available for the cancellation of license of the appellant /writ petitioner."

The Bench further observed:"We are also surprised at the contents of the notice given to the appellant asking him to explain within 24 hours, on day to day basis for fifteen years the details of the occasions on which the cartridges purchased by him were spent. We have perused the reply furnished by the appellant, which does not specifically admits of the appellant having spent the cartridges on celebratory firing after 2019. All that the explanation discloses is that 1350 cartridges were acquired over a long period of time from different sources under the license and were spent on special days as also for the purposes of checking the fitness of the weapon so that it is not rendered unfit by disuse. Based on the aforenoted explanation, a police report was called for from the Superintendent of Police, wherein also, no adverse report came against the appellant. Without any further notice to the appellant to deliver up his license and the fire arm and intimating him the reason for proceeding to cancel his license, the license was cancelled only on the ground of having used the weapon for celebratory firing."

Although Justice Shah noted that the proscription of celebratory firing was brought into the statute from the year 2019, he only relied upon three of the clauses, namely, 7, 8 and 9 of Arms Rules of 2016 to justify the order of cancellation of license and its validation by the appellate authority.

Notably, it was recorded in the Justice Shah's judgement that the petitioner had submitted that prior to the amendment of the Arms Act, 1959, which came into effect from December 14, 2019, celebratory firing was not prohibited. It was also submitted that only with effect from that day, Section 25 of the Arms Act, 1959 was amended and sub-section (9) was added thereto, which reads as follows:-
“(9) Whoever uses firearm in a rash or negligent manner or in celebratory gunfire so as to endanger human life or personal safety of others shall be punishable with an imprisonment for a term which may extend to two years, or with fine which lakh, or with both.
Explanation.—For the purposes of this sub-section, “celebratory gunfire” means the practice of using fire-arm in public gatherings, religious places, marriage parties or other functions to fire ammunition.]” 

It was submitted that since celebratory firing was not prohibited prior to December 14, 2019, the petitioner could not have been penalized by cancelling the arms license, hence the order dated August 5, 2021, passed by the District Magistrate, Saharsa, as also the appellate order dated June 3, 2022 was fit to be set aside.

Justice Shah's judgement recorded that the petitioner had submitted his reply dated April 3, 2021, stating therein that he has used 1302 cartridges in between the years 2005 to 2020, for not only testing his rifle but also on the occasion of Eid and Deepawali. His judgement reads: "This Court finds that the amendment in the Arms Act, 1959 has come into force with effect from 14.12.2019, whereby sub-section (9) has been added to Section 25, which prohibits celebrating firing, hence, considering the fact that the petitioner has submitted his reply dated 03.04.2021, admitting therein that he has engaged in celebratory firing on the occasion of Eid and Deepawali in between the years 2005 to 2020, he is definitely liable for penal consequences/cancellation of his arms license, inasmuch as the year 2020 is definitely covered by the aforesaid amendment. Nevertheless, this Court finds that under the old Arms Rules, 1962, certain conditions have been prescribed as pre-requisites for possessing arms license and one of the conditions is that the licensee shall not carry any arms to a fair, religious procession or other public assemblage or within the campus or precincts of any educational institutions, meaning thereby that no arms can be taken to a religious procession or in marriage festivities. In fact, the amended Arms Rules, 2016, which undeniably covers the present case, also postulates various conditions required to be adhered to for possessing an arms license and the same not only prohibits carrying of fire-arms to a fire-arm free zone or in a public place but also prohibits brandishing of fire-arms in public place or firing fire-arms in any public place on the occasion of marriage, public assembly, fair or procession or any public event."

Justice Shah's judgement pointed out that "the petitioner has admitted to celebratory firing on the occasion of Eid and Deepawali festival, apart from having engaged in such firing on the occasion of marriage ceremony as is apparent not only from the reply of the petitioner dated 03.04.2021, but also from the order dt. 03.6.2022, passed by the Commissioner, Koshi Division, Saharsa and from the report of the Police Officer, Sour Bazar Police Station annexed as annexure-4 series to the writ petition, which has been heavily relied upon by the learned counsel for the petitioner, wherein it has been stated that the petitioner has himself informed the said police officer that on the occasion of Eid and other festivals as also on the occasion of marriage ceremonies, he has been engaging in firing in the air." 

Justice Shah's concluded:"this Court finds that the petitioner has not only violated the conditions prescribed for the purposes of possessing an arms license, as postulated under the Arms Rules, 1962 and the Arms Rules, 2016 but has also contravened Section 25 (9) of the Arms Act, 1959, as amended with effect from 14.12.2019, thus the license of the petitioner has rightly been cancelled by the District Magistrate, Saharsa, by the impugned order dt. 05.08.2021. Consequently, the appellate order dated 03.06.2022 also does not suffer either from jurisdictional error or any illegality. Having regard to the facts and circumstances of the case and for the reasons mentioned, hereinabove, I do not find any merit in the present writ petition, hence the same stands dismissed."

Based on documents on record, Justice Shah's judgement had inferred that the petitioner had admitted that he has been engaging in firing in the air on the occasion of Eid and other festivals as also on the occasion of marriage ceremonies even after 2019. 

The Division Bench pointed out that "In the absence of any adverse report and nothing specific in the explanation of the appellant of having admitted to celebratory firing after 2019, the decisions of the authorities, namely, the District Magistrate and the Commissioner appear to be totally unwarranted and based on complete non-application of mind."

The Division Bench concluded:"For the aforenoted reasons, we set aside the orders passed by the District Magistrate, Saharsa dated 05.08.2021 and the Commissioner dated 03.06.2022 in appeal and the judgment of learned Single Judge upholding the aforenoted two orders. However, we direct the District Magistrate, Saharsa/respondent no. 7 to serve a fresh notice to the appellant, within a period of 30 days from today and seek explanation from him as to why his license be not cancelled for having resorted to celebratory firing from 2019 onwards. After the explanation is received and the police report confirms that there had been violation of anyone of the conditions of license, a reasoned order by the District Magistrate shall be passed within a further period of 90 days, which shall be made known to the appellant forthwith. There would be no necessity of returning the arms and license to the appellant in the meanwhile. The appeal stands allowed to the extent indicated above." The other six respondents were: Divisional Commissioner Koshi Division, Saharsa, Superintendent of Police, Saharsa, Additional District Magistrate, (Arms) Saharsa, District Arms Magistrate, Saharsa,  S.H.O. Sour Bazar Police Station, Saharsa and District Magistrate, Saharsa respectively. The judgement of the Division Bench was authored by Justice Kumar.

 

Acting Chief Justice led bench affirms validity and constitutionality of State Government's notification regarding ‘Codeine’ as an intoxicant

In Om Logistics Limited through its authorised respresentative Shri Tap Narayan Pandey vs. The State of Bihar through the Chief Secretary, Govt. of Bihar & Ors. (2025), Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy concluded: "we note that in the absence of any Rules, at the time when the criminal case was registered against the petitioner, the criminal Courts would necessarily be called upon to take it into consideration, when a prayer is made for quashing the FIR etc., to assess whether the offences charged were made out. For the aforesaid purpose and after declaring the validity and constitutionality of the impugned notification dated 18.10.2016, we refer the Cr.W.J.C. No. 558 of 2021 to the roster of the learned Single Judge hearing such criminal writ petitions." With this observation, the C.W.J.C. No. 20522 of 2021 was disposed off. The judgement was pronounced on May 16, 2025. It was authored by Justice Kumar.  The judgement was reserved on April 22, 2025. It is nor clear which Single Judge is likely to hear the case now with regarding to the applicability of the notification on the date in question. 

Relying on Supreme Court’s 9-judge bench decision in State of U.P. vs. Lalta Prasad Vaish, 2024 SCC OnLine SC 3029, the High Court's judgement reads: "we hold that: (a) the impugned notification is a legitimate exercise of power under Entry 8 List II read with the judgment in Lalta Prasad Vaish (supra).
(b) There is no repugnancy with the Drugs and Cosmetics Act, 1940, as the State action targets the abuse
and non-medicinal use of codiene based versions.
(c) The notification is in furtherance of the States’ constitutional obligation under Article 47 to prevent
intoxicating substance abuse.
(d) Intoxicants and intoxicant drugs, when misused would fall in the category of res extra commercium."

The other respondents in the Om Logistics Limited's case were: Additional Chief Secretary, Prohibition, Excise and Registration Department, Govt. of Bihar, Principal Secretary, Prohibition, Excise and Registration Department, Government of Bihar, Excise Commissioner, Prohibition, Excise and Registration Department, Govt. of Bihar, Collector cum District Magistrate, Madhepura, Additional Collector cum Additional District Magistrate, Madhepura, Superintendent of Excise and Prohibition, Madhepura, Superintendent of Police, Madhepura and S.H.O., Singheshwar Police Station, Madhepura. It was heard along with Sooryamani Prasad Pandey @ Sooryamani Pandey @ Suryamani Pandey vs. The State of Bihar Through The D.G.P. Bihar & Ors (2025). The other respondents were: Director General of Police, Bihar, Inspector General of Police, Darbhanga Range, Darbhanga, Deputy Inspector General of Police, Koshi Range, Saharsa, Superintendent of Police, Madhepura and S.H.O., Singheshwar Police Station, Madhepura. The case arose out of a PS. Case of 2020 at Sinheshwar Thana, Madhepura.

The petitioner, a Transportation and Logistics Company, had filed this petition for quashing the Notification No. 11 dated October 18, 2016, whereby, in exercise of powers under Section 3 of the Bihar Prohibition and Excise Act, 2016, the State Government had notified all medicines and medicinal preparations containing medicinal preparation ‘Codeine’ to be an intoxicant for the purposes of the Act, for it being ultra vires Sections 26-A and 26-B of the Drugs and Cosmetics Act 1940, read with Entry 132 of Schedule-H read with Rules 65 and 97 of the Drugs and Cosmetics Rules, 1945 as also for the notification being beyond the legislative competence of the State Legislature and its Executive. 

The petitioner had also prayed for quashing the order dated September 6, 2021 passed in Excise Confiscation Case No. 32 of 2021 by the Additional Collector-cum-Additional District Magistrate, Madhepura (Respondent No. 6), whereby the truck belonging to the petitioner has been confiscated and has been directed to be auction sold. The petitioner prayed for release of the truck of the petitioner forthwith and also for release of the consignment of drugs viz. Wiscof Cough Syrup containing Codeine which was being transported in the truck in question and for which a P.S. case was registered at Singheshwar Thana.

The petitioner received instructions for booking a shipment containing consignment of Wiscof Cough Syrup on the instructions of M/s Windlas Biotech Pvt. Ltd., Dehradun, the manufacturer of Wiscof Cough Syrup, which was to be picked up from the authorized and licensed distributor, viz. M/s Maa Durga Enterprises (Consignor) which had valid drug license. The company is based in Ranchi (Jharkhand). The consignment had to be transported to Madhepura (Bihar) for being delivered to two licensed pharmacies.

The contention of the petitioner is that M/s Windlas Biotech Pvt. Ltd., the manufacturer of the cough syrup in question containing Codeine Phosphate, had a valid license in terms of Rule 70 of the Drugs and Cosmetics Rules, 1945 entitling it to manufacture all prescription drugs including Codeine mentioned in Schedule-H of the rules.

M/s Maa Durga Enterprises (Consignor), was the authorized distributor of M/s Windlas Biotech Private Limited. It is a licensed proprietorship concern holding licences both in Form 20B and 21Benabling it to sell or exhibit (or offer) for sale or distribute by wholesale, drugs specified in Schedule-H of the Drugs and Cosmetics Rules, 1945. The consignees viz., M/s Bimal Medical Agency as well as M/s Yash Enterprises also have valid licences under Form 20B and 21B to sell Schedule-H drugs including Codeine.

When the truck of the petitioner reached Madhepura with the consignment, the same was seized and an FIR vide Singheshwar P.S. Case No. 228 of 2020 was instituted for offenses punishable under Sections 8(c), 21(c), 22(c), 23, 24, 25, 27A and 29 of the NDPS Act, 1985 and Section 30(a) of the Bihar Prohibition and Excise Act, 2016 against the driver of the truck, the consignor, the consignees and the owner of the petitioner/company.

The contention of the petitioner before the courts below was that transporting the cough syrup with Codeine is neither illegal nor prohibited as cough syrup is not an intoxicant or a drug or a psychotropic substance. He 10. He also contented that the Central Government, in exercise of powers conferred under Section 2(xi)(b) of the NDPS Act vide S.O. No. 826(E) dated 14.11.1985, has declared Codeine (Methyl Morphine) and its salts (i.e. including Codeine Phosphate), dilutions and preparations containing not more than 100 mgs. of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice to be a “manufactured drug” within the meaning of the Act. He pointed out that under the license of M/s Windlas Biotech Pvt. Ltd., the cough syrup manufactured by it has less than the prescribed quantity of Codeine by the Central Government. 

The judgement records that "it is not the case of the prosecution either that the cough syrup in question contained dosage of Codiene more than prescribed by the Central Government, rendering it to be a psychotropic substance."

In the petition before the High Court, the primary challenge was to the validity and constitutionality of the notification in question dated October 18, 2016 on the ground of same being ultra vires the State’s legislative competence and it being repugnant to the Drugs and Cosmetics Act, 1940. 

The State relied on its powers under Entry 8 of List -II of Seventh Schedule of the Constitution of India and the Supreme Court’s nine Judges’ decision in State of U.P. vs. Lalta Prasad Vaish, 2024 SCC OnLine SC 3029 for defending the notification. 

Notably, Section 3 of the Prohibition Act of 2016 provides the power to the State Government to declare any intoxicant.

Section 3 inter alia states that notwithstanding anything mentioned under Section 2 (40) of the Act, the State Government may, by notification, declare for the purposes of this Act or any portion thereof, such items of commodities or chemical ingredients, which can be used as a substitute for alcohol, to be intoxicants with such restrictions or conditions as may be specified in the notification.

The impugned notification dated October 18, 2016 has been brought about under the powers given to the  State Government under Section 3 of the Act.

Section 2(40) of the Act defines an intoxicant. It means and includes-
(i) liquor, or;
(ii) Spirit including silent spirit or ENA, or;
(iii) Methyl Alcohol, or;
(iv) Ethanol, whether denatured or not, or;
(v) any substance from which the liquor may be distilled and which is declared by the State Government by notification in the Official Gazette to be an intoxicant for the purposes of this Act, or;
(vi) intoxicating drug, or;
(vii) medicinal preparation as defined under Medicinal and Toilet Preparations (Excise Duties) Act, 1955), or; 

(viii) any preparation or ingredient, either medicinal or otherwise, whether solid, semi solid, liquid, semi liquid or gaseous, either made locally or otherwise, that may serve as an alcohol or as a substitute for alcohol and is used or consumed for the purposes of getting intoxicated. 

Section 2(41) of the Act defines ‘intoxicating drug’ which means-

“(i) the leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (Cannabis Sativa L) including all forms known as bhang, siddhi or ganja;

(ii) charas, that is, the resin obtained from the hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transport;

(iii) any mixture, with or without neutral materials, of any of the above forms of intoxicating drug, or any drink prepared therefrom; and

(iv) any other intoxicating or narcotic substance which the State Government may, by notification, declare to be an intoxicating drug, such substance not being opium, cocoa leaf or a manufactured drug, as defined in Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985).

The notification in question prescribes that all medicines or medicinal preparations containing Codeine and Dextropropoxyphene to be intoxicants for the purposes of the Act.

Sub-clause (iv) of Clause 2 of the notification prescribes prohibition of manufacturing, bottling, distributing, possessing, transporting, transiting, importing or exporting of such drugs without a valid license or permit issued by the Collector under the Act. 

The petitioner contented that in terms of Entry 19 of the Concurrent List, which contains subject matters “drugs and poisons”, subject to the provisions of Entry 59 of List-I of Union List with respect to opium (Entry 59 of List I includes cultivation, manufacture and sale for export, of opium), two Central legislations viz. N.D.P.S. Act, 1985 and Drugs and Cosmetics Act, 1940 exhaustively occupy the field and therefore, the State would be prevented from making any law by virtue of Entry 8 of List- II of Seventh Schedule of the Constitution of India which would deal with a manufactured drug permitted under the N.D.P.S. Act, 1985 and Drugs and Cosmetics Act, 1940.

In exercise of powers under Section 2(xi)(b) of the N.D.P.S. Act, 1985 the Central Government has notified Codeine (Methyl Morphine) and its salts (i.e. including Codeine Phosphate, dilutions and preparations containing not more than 100 mgs per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice) to be a manufactured drug within the meaning of the N.D.P.S. Act, 1985.

Similarly, Codeine has been notified to be a prescription drug in terms of Schedule-H of the Drugs and Cosmetics Rule, 1945. In terms of Rules 65, 75 and 97 of the 1945 Rules, the manufacture, distribution, transport, stocking, sale and purchase are regulated through the licenses. Section 18 of the Drugs and Cosmetics Act, 1940 Act prohibits manufacture, distribution, stocking or sale of drugs except in accordance with the Rules or conditions of licenses prescribed under the Act. Section 27 provides penalties and punishments for manufacture, distribution, sale, stocking/exhibition etc. of drugs without a valid license.

Sections 26A and 26B of the Drugs and Cosmetics Act, 1940 Act exhaustively occupies the field relating to regulation, restriction or prohibition of manufacture, sale or distribution of drugs, reserving the powers for the same exclusively for the Central Government for the purposes of promoting uniformity and standardization of its legislative scheme as a matter of public interest. Thus, it is an exhaustive Code on the subject which cannot be breached by a State law.

The petitioner argued that the State cannot resort to Entry 8 of List- II of the Seventh Schedule of the Constitution of India for notifying medicines and medicinal preparations containing Codeine as intoxicants under the protective and expansive umbrella of Article 47 of the Constitution of India.

Article 47 of the Constitution of India casts a duty on the States to raise the level of nutrition and the standard of living and to improve public health. The State shall endeavor to bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

The petitioner submitted that the impugned notification is ultra vires the parent Act. The reasons for saying so is that Section 2(40) of the Act defines intoxicants, whereas 2(41) defines intoxicating drug. 2(41) (iv) enables the State Government to notify and declare any other substance to be an intoxicating drug, such substances not being opium, cocoa leaf or a manufactured drug, as defined in Section 2 of the N.D.P.S. Act, 1985.

It was submitted that what Section 3 of the Prohibition Act of 2016 permits is inclusion/addition in the list of intoxicant substances other than those covered under Section 2(40) of the Act and not what is covered under Section 2(41) of the Act.

Codeine has been notified as a manufactured drug by the Central Government, and therefore, it cannot be included in the definition of intoxicating drug in view of the bar contained under Section 2(41)(iv) of the Prohibition Act, 2016. 

The petitioner had questioned the Constitutionality and validity of the notification saying that the notification is absolutely unworkable in view of Sections 14 and 27 of the Act of 2016.

Sections 14, 15, 16 and 27 of the Prohibition Act of 2016 reads: 14. Movement of Intoxicants etc.-(1) No liquor, intoxicant or final product shall be imported, exported or transported or transited within or from outside or through the State except with a valid permit and subject to such duty (if any) payable; (2) If any consignment of liquor or intoxicants is being transported by road from a place outside the State of Bihar to another such place and the vehicle carrying the consignment passes through the territory of the State, the driver or any other person in-charge of the vehicle shall obtain transit permission in the prescribed manner from the authority of the first check post falling en route after entry into the State and shall surrender the same transit permission to the authority of the last check-post before leaving the State and in the event of failure to do so within the stipulated hours of leaving the first check-post falling en route, it shall be deemed that liquor or intoxicants so transported have been sold or disposed off by the owner or the person-in-charge of the vehicle within the State of Bihar. (3) In case the driver or person referred to in sub-section (2) fails to comply with the provisions of sub-section (2), he may, apart from being levied such penalty as the State Government may decide, also be prosecuted under section 30 of this Act; (4) The State Government may make detailed rules for this purpose.
15. Restrictions on Vehicles carrying intoxicants etc.-The State Government may lay down reasonable restrictions on the vehicles transporting any excisable articles or final products and may require them to adhere to certain specifications. Provided further that the State Government may require the transport vehicles to install such devices as it may require as a pre-condition for registration under the Motor Vehicles Act and give such directions to the State Transport Authority as it deems fit.
16. Power to Regulate Transport of Intoxicants.-Notwithstanding anything contained in the Act or any Act for the time being in force, the State Government may, by notification, regulate the movement or import or export of any or all liquor or intoxicant into or from or through the State or any specified part or area of the State.
27. Fees for terms, conditions, and form of, and duration of, licenses, permits and passes-(1) Every license renewed or permit/ pass granted under this Act – (a) shall be renewed or granted -(i)On payment of such fees (if any), and(ii)Subject to such restrictions and on such conditions, and (b) shall be in such form and contain such particulars, as the Rules may provide. (2) Every license renewed or permit or pass  granted under this Act shall be for such period (if any) as prescribed by rule made by the State Government under this Act.

It was pointed out that no rules have been framed under Section 95 of the Act, prescribing the form and particulars as required under Section 27(1)(b) of the Act of 2016, in terms whereof any intoxicant could be transported within the State of Bihar with regard to Section 14 of the Act of 2016. As such, the provision of Section 14 of the Act of 2016, creating an embargo on such transportation, is unworkable. A Division Bench of this Court in CTI Infrastructure Private Limited Vs. State of Bihar, 2019 SCC OnLIne Pat 710 held it likewise. The net effect of the notification in question is that a licensed act could become a penal offence. In the absence of Rules, as required in terms of Section 95 of the Act and in absence of any permit or license being prescribed, the notification, without providing for anything else, is unworkable and therefore should not be given effect to.

The judgement records that the Rules have now been made under the rubric of Bihar Prohibition and Excise Rules 2021 which was published in Bihar Gazette on September 27, 2021. It also noted that the FIR against the petitioner is prior to the promulgation of the Rules.

The Advocate General submitted that drawing on Article 47 of the Constitution of India, the Government of Bihar announced the new Excise policy on December 21, 2015 for complete prohibition in the whole State of Bihar for public morality, public health and for the harmful and dangerous character of the liquor/intoxicants. The mandate of the Constitution to the State is clear to the extent of regulating trade or business in intoxicants. Entry 8 of List- II of the Seventh Schedule empowers the State to deal exclusively in intoxicants including its production, manufacture, possession, transport and sale etc. Since the Entry is expansive, there was no necessity of obtaining any presidential assent in the matter. The notification in question was brought about to notify all medicines or medicinal preparations containing Codeine and Dextropropoxyphene to be intoxicants. Entry 8 of List- II gives unrestricted power to the State to deal with intoxicating materials.

Notably, Entry 11 of List- II, which gave unrestricted power to the State Governments with regard to the trade and commerce in potable alcohol was deleted by the Constitution (Forty-second Amendment) Act, 1976. 

Advocate General drew on the binding precedent of 9- Judges’ Bench in State of U.P. vs. Lalta Prasad Vaish, 2024 SCC OnLine SC 3029 in defending the notification and submitted that (i) it is within the legislative competence of the State; (ii) the notification is not repugnant with the Central law as it targets only misuse and unauthorized use of the intoxicants; (iii) provides exceptions for licensed Pharmacies and registered practitioners; (iv) and is absolutely reasonable and proportional to the mischief which is sought to be avoided, to the public health and morality. He also submitted that the Bihar Prohibition and Excise Rules, 2021 providing for a structured licensing regime for the manufacture, possession, sale of medicinal and pharmaceuticals preparations that may otherwise fall under the definition of intoxicants, if misused, especially with reference to Rule 22 and 24(2).

The judgement recalled that several States in the past had imposed levies (excise duties or fees) on industrial alcohol (denatured spirits under their Excise Act), claiming power under Entry 8 of List 2. This was challenged by manufacturers of industrial alcohol in Synthetics and Chemicals Ltd. v. State of U.P.; (1990) 1 SCC 109, a 7-Judge Bench explained the scope of the regulatory powers of the State legislature on “intoxicating liquor”. 

But subsequently, the correctness of this view in Synthetics and Chemicals case was tested by a 9-judge bench in State of U.P. Vs. Lalta Prasad Vaish case (supra). Two of the questions which were framed in Synthetics and Chemicals case were (i) “what is the scope and ambit of Entry 8 of List-II of the Seventh Schedule of the Constitution”; and (ii) “whether the State Government has exclusive right or privilege of manufacturing, selling, distributing etc. of alcohols including industrial alcohol." 

It was held that Ethyl Alcohol was an industrial alcohol and the phrase intoxicating liquor in Entry 8 means liquor which is consumable by human being as it is. The power of the State, it was held in Synthetics and Chemicals case to legislate on the subject of alcohol is restricted to (1) prohibit potable alcohol in terms of Entry 6 of List 2 which concerns public health laying down regulations to ensure that non-potable alcohol is not diverted and misused as a substitute for potable alcohol; (2) charge Excise duties on potable alcohol and Sales Tax under Entry 52 of List 2 but not on industrial alcohol.

The issues in Synthetics and Chemicals case focused on the competence of the respective legislature to levy tax on industrial alcohol and in that context, the demarcation of the Entries in List-I and List-II were emphasized with a tilt towards federal autonomy. It demarcated the legislative competence between the Union and States in matters relating to alcohol and limited the State’s power to regulate only potable alcohol. The judgment reinforced the doctrine of pith and substance and exclusive federal control over certain industry. This had led to reassessment of Excise policies in many States and the States had to withdraw Excise duties on industrial alcohol.

The High Court recollected that the issue was ultimately referred to the 9-Judge Bench in State of U.P. and Ors. vs. Lalta Prasad Vaish case, wherein two issues, relevant for the decision in the Om Logistics Limited case, amongst others, were discussed, viz., (i) whether there would be a presumption of the intention of the Central Government to cover the entire field with respect to Entry 33 of List III (trade and
commerce in, and the production, supply and distribution of products of any industry where the control of such industry by the Union is declared by the Parliament by law to be expedient in public interest) so as to oust the States’ competence to legislate in respect of matters related thereto; and (ii) whether the interpretation given in Synthetics and Chemicals case with respect to the ambit and scope of Entry 8 of List-II is correct.

The 9-Judge Bench in Lalta Prasad Vaish case analyzed various decisions on the subject and held as follows: “140. In view of the discussion above, the following conclusions emerge:
a. Entry 8 of List II of the Seventh Schedule to the Constitution is both an industry-based entry and a product-based entry. The words that follow the expression “that is to say” in the Entry are not exhaustive of its contents. It includes the regulation of everything from the raw materials to the consumption of ‘intoxicating liquor’;
b. Parliament cannot occupy the field of the entire industry merely by issuing a declaration under Entry 52 of List I.
The State Legislature's competence under Entry 24 of List II is denuded only to the extent of the field covered by the law of Parliament under Entry 52 of List I;
c. Parliament does not have the legislative competence to enact a law taking control of the industry of intoxicating liquor covered by Entry 8 of List II in exercise of the power under Article 246 read with Entry 52 of List I;
d. The judgments of the Bombay High Court in FN Balsara v. State of Bombay (supra) and Southern Pharmaceuticals (supra) did not limit the meaning of the expression ‘intoxicating liquor’ to its popular meaning, that is, alcoholic beverages that produce intoxication. All the three judgments interpreted the expression to cover alcohol that could be noxiously used to the detriment of health;
e. The expression ‘intoxicating liquor’ in Entry 8 has not acquired a legislative meaning on an application
of the test laid down in State of Madras v. Gannon Dunkerley; 1959 SCR 379;-
f. The study of the evolution of the legislative entries on alcohol indicates that the use of the expressions “intoxicating liquor” and “alcoholic liquor for human consumption” in the Seventh Schedule to the Constitution was a matter well-thought of. It also indicates that the members of the Constituent Assembly were aware of use of the variants of alcohol as a raw material in the production of multiple products;
g. Entry 8 of List II is based on public interest. It seeks to enhance the scope of the entry beyond potable alcohol.
This is inferable from the use of the phrase ‘intoxicating’ and other accompanying words in the Entry. Alcohol is inherently a noxious substance that is prone to misuse affecting public health at large. Entry 8 covers alcohol that could be used noxiously to the detriment of public health. This includes alcohol such as rectified spirit, ENA and denatured spirit which are used as raw materials in the production of potable alcohol and other products. However, it does not include the final product (such as a hand sanitiser) that contains alcohol since such an interpretation will substantially diminish the scope of other legislative entries;
h. The judgment in Synthetics (7J) (supra) is overruled in terms of this judgment;
i. Item 26 of the First Schedule to the IDRA must be read as excluding the industry of “intoxicating liquor”, as interpreted in this judgment;
j. The correctness of the judgment in Tika Ramji (supra) on the interpretation of word ‘industry’ as it occurs in the legislative entries does not fall for determination in this reference; and
k. The issue of whether Section 18G of the IDRA covers the field under Entry 33 of List III does not arise for adjudication in view of the finding that denatured alcohol is covered by Entry 8 of List II.”

The 9-Judges Bench had found that there was an unduly narrow interpretation of intoxicants in Synthetics
(supra). Thus, the restrictive view in Synthetics and Chemicals case was discarded and the view which was focused was that the effect and use of the substance was necessary and not just its chemical composition or original intended purpose.

Even medicinal or industrial products would fall within the definition of intoxicants, if misused for intoxication. A purposive construction, therefore, was given to Entry 8 List II. The goal of prohibition laws is not taxation or regulation of industry, but public health, morality and prevention of substance abuse. Therefore, it was held that the States’ competence should be interpreted in the light of its responsibilities under Article 47 of the Constitution of India and there should be no constraint by a rigid industrial classification.

Unlike in Court in Lalta Prasad Vaish (supra) clarified that State Prohibition Laws under Entry 8 are qualitatively different from commercial regulation under Entry 33 of List III. The State does not interfere with trade but acts to prohibit harmful consumption, which falls entirely within its domain.

The principles of pith and substance and occupied field were not accepted in Lalta Prasad Vaish (supra) to expand the powers of the Union or to hold the State Law under Entry 8 of List II to be either repugnant to any Central Law or hit by the occupied field frame. It would not be out of place to state in short about the doctrine of pith and substance, which is used to determine the true nature of substance of the legislation when there is an overlap between the powers of the Centre and the State under the Seventh Schedule of the Indian Constitution. It primarily declares that if the main corpus of a law is within the jurisdiction of the legislature that passed it, then the law is valid, even if it incidentally encroaches on another legislature’s domain. 

The principle of “occupied field” is a principle in the Indian Constitutional Law that arises from the distribution of legislative powers. The concept is that if the Parliament enacts a law on a subject enumerated in the concurrent list, and the law displays an intention to cover the entire field, then the State Law on the same subject, if inconsistent, becomes inoperative, even if it were enacted earlier or has received presidential assent. In other words, the “field” is said to be “occupied” by the Union Legislation. The purpose of invoking this doctrine is to ensure uniformity in laws on certain matters of national importance and prevent conflicting State Laws. (refer to Tika Ramji & Others, Etc. vs The State Of Uttar Pradesh & Others, 1956 AIR 676; Deep Chand v. State of U.P., 1959 AIR 648; M. Karunanidhi vs The Union Of India (UOI), 1979 AIR 898 and Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra And Others, AIR 2010 SC 2633). In M. Karunanidhi (supra) the Supreme Court has laid down a four point tests to determine repugnancy: (i) whether there is a direct conflict; (ii) whether Parliament is intended to cover the entire field;
(iii) whether both Laws can co-exists; and
(iv) whether the Central Law is exhaustive.

If the Central Law occupies the field completely, the State Law will be repugnant and invalid to that extent.

In  oechst Pharmaceuticals Ltd. and Ors. vs. State of Bihar and Ors. : (1983) 4 SCC 45, which is the locus classicus on the constitutional scheme of legislative distribution, it was held that when there is a conflict between an Entry in List I and an Entry in List II which is not capable of reconciliation, the power of Parliament to legislate with respect to a field covered by List I has precedence over the power of the State to that extent. It was further held that in case of a seeming conflict between the entries in the two Lists, the entries must be read together, without giving a narrow and restricted meaning to either of the entries in the List.

If the entries cannot be reconciled by giving a wide meaning, it must be determined if they can be reconciled by giving the entries a narrower meaning

In State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors. : (2010) 3 SCC 571, the Supreme Court held that the principle of federal supremacy in Article 246 can be resorted to only when there is an irreconcilable direct conflict between the entries in List I and List II.

Entry 8 of List II is to be understood in terms of the phrase “that is to say” which provides platform for the State to make laws with respect to production, manufacture, possession, transport, purchase and sale of intoxicating liquors. It is a general entry and not a taxing entry. Nonetheless, it is a special entry in the sense that it specifically enumerates intoxicating liquors as a legislative field to the exclusion of all other general entries under which it may have otherwise being subsumed. The entry stipulates that intoxicating liquors would fall within the legislative domain of the States and it would also include any intoxicant or intoxicant drug and its manufacture, production, transportation, etc.

The States’ power over intoxicating substances is res extra commercium, which means that certain activities or items are so inherently harmful, immoral, or opposed to public policy that it cannot be the subject of trade, business or fundamental rights like Article 19(1)(g) of the Constitution. Though this doctrine had originated in Roman Law but in several cases in the Indian context, it has been invoked to justify State regulation or prohibition of trade in certain goods or activities such as intoxicants, narcotics, gambling etc.

In the State Of Bombay vs R. M. D. Chamarbaugwala, 1957 AIR 699 gambling and betting were held to be res extra commercium. In Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304, liquor was affirmed as res extra commercium meaning thereby that State could prohibit or regulate it straight entirely. The protection of 19(1)(g) would not apply to such inherently dangerous goods. Though there have been some criticism of the doctrine on the ground of it being vague and arbitrary but so far as liquor and intoxicants are concerned, there is unanimity of the judicial opinion that such goods are extra commercium.

In Southern Pharmaceuticals and Chemical vs. State of Kerala; (1981) 4 SCC 391, the appellants had challenged the constitutional validity of the provisions of the Abkari Act, as amended by the Abkari (Amendment) Act, 1967 and Kerala Rectified Spirit Rules 1972 which regulated the use of alcohol for the preparation of medicines. Item 22 of the Schedule to IDRA specifies the “drugs and pharmaceuticals” industry. The contention was that the State Legislature did not have the competence to enact laws because the field was covered by Parliament through IDRA. The issue before the three Judges’ Bench of the Supreme Court was whether the State Legislature had the competence to enact law related to medicinal and toilet preparations containing alcohol under Entry 8 of List-II of the Seventh Schedule to the Constitution. The Supreme Court held that the State had the competence to enact the impugned laws under Entry 8 of List-II because the legislations are confined to ensuring the proper utilization of rectified spirit in the manufacture of medicinal and toilet preparations. The preparations which are capable of being misused or noxious purpose can be considered intoxicating liquor. The test to determine if it can be misused is whether the article in question can be used as a beverage.

Supreme Court seized with case of identified illegal structures on Ganga in Bihar

In Ashok Kumar Sinha vs. Union of India & Ors. (2025), Supreme Court's Division Bench of Justices J.B. Pardiwala and K.V. Viswanathan observed: "we would like to know what steps have been taken by the authorities to remove all such encroachments over the banks of river Ganga. We would also like to know how many such encroachments are still there as on date on the banks of the river and in what manner authorities propose to remove all such encroachments & within what period of time. Before we proceed to issue final directions in this matter, we would like to have a report in this regard by the next date of hearing. We direct both the State of Bihar as well as the Union of India to file an appropriate report so that we can proceed further in the matter" in its order dated April 2, 2024. The case is posted for hearing after four weeks.

Earlier, the Court had directed the Bihar government to ensure that no further construction takes place adjacent to the Ganga River, particularly in and around Patna.The Court had directed the state to report to it on the progress of getting the 213 identified illegal structures, which have been raised on the floodplains of River Ganga in Patna.

A detailed report given by District Magistrate, Patna has been prepared based on survey conducted from Digha Ghat to Nauzar Ghat on the banks of river Ganga. In 2020, the petitioner had challenged the illegal constructions of colonies, setting up of brick kilns and other structures, including, a 1.5 km road by the Bihar government itself, on the eco-fragile floodplains of Ganga in Patna, "which constitutes one of the richest Dolphins habitat in the subcontinent" in violation of the River Ganga (Rejuvenation, Protection & Management) Authorities Order, 2016, under the Environment (Protection) Act, 1986.

The Court has directed Bihar government to ensure that no further construction takes place adjacent to Ganga River, particularly in and around Patna. 

The supplementary affidavit of Pramod Kumar Rajak (30), the Project Officer-cum-Deputy Director, Urban Development and Housing Department, Government of Bihar has submitted that till August 25, 2023, survey had been completed along the banks of the Ganga river from Digha Ghat to Mahatma Gandhi Setu that is approximately an 8 km stretch that is divided into Survey Map (1908-1909), Khas Mahal Digha-Diara map and Municipal Survey Map (1932-1933). In each survey map, private or raiyati land is marked by plots or khesra numbers and the areas along the banks of river Ganga were left unsurveyed, presumably because they were subject to seasonal floods. Any private construction on these parts which is unauthorized has been identified as an encroachment. The measurement team conducted measurement work on the basis of Survey Map (1908-1909), Khas Mahal Digha-Diara map and Municipal Survey Map (1932-1933) and the measurement team has submitted a detailed 1st survey report (from Digha Ghat to Mahatma Gandhi Setu) to the Circle Officer, Patna Sadar enclosing therewith (i) report, (ii) visual map, (iii) joint map of Siwan Patna District, and (iv) list of encroachers that were forwarded vide letter no. 7558 dated 24.08.2023 to the District Magistrate, Patna. As per the measurement report qua the survey completed till August 2023 from Digha Ghat to Mahatma Gandhi Setu, the status of illegal constructions/encroachments, Mauza/village-wise was as follows:
(i) Mauza Digha Diara Khas Mahal ½: Total number of illegal constructions, permanent/temporary encroachments are 35.
(ii) Mauza-Digha Diara, Thana no. 141:- Total number of illegal constructions, permanent/temporary encroachments are 21.
(iii) Mauza-Mainpura, Thana No. 140: Total number of illegal constructions, permanent/temporary encroachments are 06.
(iv) Mauza-Mainpura Diara, Thana No. 140: Total number of displaced families that were rehabilitated to these areas, decades ago by the Government in Bindi Toli are 205.
(v) Mauza-Dujra Diara, Thana No. 13: Total number of displaced families that were rehabilitated to these areas, decades ago by the Government are 08. 

The survey completed till August 2023 from Digha Ghat to Mahatma Gandhi Setu, at present the river Ganga is flowing only through certain parts of Diara area that is marked in the map and there is no specific map of the river Ganga in the survey maps. Temporary farming is done by local villagers due to increase and decrease in the water level during the rainy season.

Notably, on December 16, 2022, the Court had recorded that Additional Solicitor General had apprised the Court that steps have been taken by the concerned Ministry for identifying unauthorised constructions, if any, on the flood of the river plain Ganga in and around the location over which complaints have been made by the appellant by using Geo Mapping technology and it will take sometime to complete this process.

High Court quashes confiscation and auction proceeding of vehicle under Bihar Prohibition and Excise Act, 2016

In Ranju Devi vs. The State of Bihar & Ors. (2025), Patna High Court's Division Bench of Justices P. B. Bajanthri and Sunil Dutta Mishra concluded: "we are of the opinion that confiscation and auction proceeding of vehicle in question for meager quantity of 1.380 litres of illicit liquor recovered therein is not reasonable." It quashed the order dated December 15, 2021 passed by Additional Chief Secretary, Department of Excise, Patna, Bihar in the Revision (Excise) case, the order dated November 1, 2021 passed by Excise Commissioner in the Excise Appeal case and order dated August 12, 2021 passed by District Magistrate-cum-Confiscating Officer, Supaul in the Confiscation (Excise) case. The petitioner was directed to pay a sum of Rs.25,000 as fine within four weeks from the date of receipt of the order. If the fine is not remitted within the said period, the District Magistrate-cum-Confiscating Authority, Supaul shall continue with the auction proceeding. The Court disposed the petition. The judgment was delivered on March 6, 2025.

The writ petition was filed for setting aside the order dated December 15, 2021 passed by Additional Chief Secretary, Bihar, Patna dismissing the revision petition and affirming the order dated November 1, 2021 passed by Excise Commissioner in an Excise Appeal as well as order dated August 12, 2021 passed by District Magistrate-cum-Confiscating Officer, Supaul in a Confiscation (Excise) Case, by which the vehicle of petitioner has been ordered to be confiscated.

The petitioner had earlier approached the High Court in CWJC No.11500 of 2021 for release of her vehicle which was disposed of vide order dated July 16, 2021 with direction to Additional Collector, Supaul to dispose of the proceeding within a period of three months or to release the  vehicle.

The allegation was that on February 8, 2021 a Scorpio car bearing was standing at the door of Lalan Yadav, on search, 1.380 litres of foreign liquor recovered from wrapper of its seat cover, after which the said vehicle was seized. On basis of these facts, an F.I.R. was registered in Supaul under Section 30(a) of The Bihar Prohibition and Excise Act, 2016 (as amended) against Pradeep Kumar Yadav (husband of the petitioner) on the basis that the vehicle is registered in his name. Thereafter, on recommendation of Superintendent of Police, Supaul, confiscation proceeding under Sections 56(b) and 58 of the Act was initiated by Additional District Magistrate, Supaul as a Confiscation (Excise) Case and by order dated August 12, 2021, the vehicle was ordered for confiscation. In the Excise Appeal before Excise Commissioner, the said order of confiscation was affirmed video order dated November 1, 2021. In the excise revision case,  the Additional Chief Secretary, Bihar, Patna affirmed the order of confiscation of vehicle in question and permitted ADM, Supaul to proceed with auction in confiscation proceeding in accordance with the Act.

The Co-ordinate Bench of the High Court by order dated March 3, 2022 in instant writ petition had directed District Magistrate-cum-Confiscating Authority to provisionally release the vehicle of petitioner with certain conditions stated therein during pendency of this writ petition.

The counsel for the petitioner had submitted that there is no involvement of the vehicle in question in any kind of illicit liquor trade and it is purely a case of plantation at instance of enemies of the petitioner’s husband. He was falsely implicated in this case and taking advantage of this incident he has been made accused of two other cases. It was also submitted that the key of the vehicle was found lying by the side of the said vehicle which is indicative of the fact that it is certainly a case of plantation. He further submitted that recovery of meager illicit liquor was at best may be treated for personal consumption and the said vehicle was not used for transporting illicit liquor.

The Division Bench observed that "confiscation and auction proceedings thereof are disproportionate and arbitrary since, confiscation and auction proceedings of the vehicle in question do not commensurate with the offence committed regarding recovery of such a meager quantity of illicit liquor." The judgment was authored by Justice Sunil Dutta Mishra. Justice Bajanthri agreed with it. 

Post decisional hearing violative principle of natural justice, fair play in action and Article 21: Patna High Court

In his judgement in Mukesh Kumar Paswan vs. The State of Bihar, Justice Purnendu Singh of Patna High Court observed: "I find it proper to record here that the Article 47 of the Constitution of India while mandating the duty of the State to raise standards of living and to improve the public health at large and as such State Government enacted Bihar Prohibition and Excise Act, 2016 with the said objective, but for several reasons, it finds itself on the wrong side of the history. The prohibition has, in fact, given rise to unauthorized trade of liquor and other contraband items. The draconian provision have become handy for the police, who are in tandem with the smugglers. Innovative ideas to hoodwink law enforcing agency have evolved to carry and deliver the contraband. Not only the police official, excise official, but also officers of the State Tax department and the transport department love liquor ban, for them it means big money. The number of cases registered is few against the king pin / syndicate operators in comparison to the magnitude of the cases registered against the poor who consume liquor and those poor people and are prey of hooch tragedy. The life of majority of the poor section of the State who are facing wrath of the Act are daily wagers who are only earning member of their family. The Investigating Officer deliberately does not substantiate the allegations made in the prosecution case by any legal document and such lacunae are left and the same allows the Mafia scot free in want of evidence by not conducting search, seizure and investigation in accordance with law." 

The Court made these observations after hearing the writ petition of Mukesh Kumar Paswan, the petitioner who was posted on the post of Inspector of Police at Bypass Police Station, Patna.  It was alleged that the participation of the petitioner in the sale of illicit liquor along with one chaukidaar, namely, Lalu Paswan, cannot be denied as the godown, in which raid was conducted, is only 500 meters from the police station. The petitioner was suspended by the Director General of Police, Bihar vide Letter No. 142 dated 01.02.2021 for the said reason. A memo of charge contained in Memo No. 1723 dated 06.02.2021 was served to the petitioner. Thereafter, Inspector General of Police, Central Range, Patna vide letter contained in Memo no.41 dated 09.02.2021, issued show cause as to why the petitioner be not held guilty for being negligent in implementation of Excise Prohibition Law which is in violation of Rule-3(1) of the Government Official Conduct Rule, 1976, pursuant to which, the petitioner submitted his detailed show cause reply on 19.03.2021 denying all the allegation. The Inquiry Officer after holding inquiry recommended for imposition of major penalty of dismissal of the petitioner. Thereafter, the Disciplinary Authority held the petitioner guilty of the charges and passed Penalty Order contained in Memo No. 233 dated 13.04.2022. Aggrieved by the penalty order, the petitioner has preferred the present writ petition. 

The Court referred to the principle of “Wednesbury unreasonableness" cited in Municipal Council, Neemuch Vs. Mahadeo Real Estate & Ors., reported in (2019) 10 SCC 738.

The judgement of Justice Singh reads: "....in my opinion, the authorities had pre-determined to impose penalty on the petitioner and proceeded to hold quasi judicial inquiry giving the post-decisional opportunity of hearing which does not sub serve the rule of natural justice and is contrary to the principle of fair play. The authority who embarks upon a postdecisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. Accordingly, I set aside and quash the suspension order no. 21/2021-142 dated 01.02.2021 (Annexure-4 to the writ petition), charge memo contained in Memo No. 41 dated 09.02.2021 (Annexure-7 to the writ petition) and the penalty order contained in Memo no. 233 dated 13.04.2022 (Annexure- 1 to the writ petition) and the subsequent orders, if any, are also hereby set aside and quashed."

The High Court relied on the decision of the Supreme Court in the case of State of Punjab vs Davinder Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770. The Apex Court has held: "......sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case......"; “Since the foundation of initiation of the departmental proceeding and its conduct have been shown to be entirely illegal, the foundation has to be necessarily removed, as a result of which the structure/work of punishment given to this writ petitioner stood, is bound to fall.” 

It referred to High Court's decision in Ajay Kumar vs. The State of Bihar (2023), wherein Justice Rajeev Ranjan Prasad has held that "presumption of guilt has no sanction of law and the same is violative of Article 21 of the Constitution of India. It is contrary to the principles of fair play in action."

The 24-page long judgement of Justice Singh is against the State of Bihar through the Additional Chief Secretary, Department of Home, Government of Bihar, the Additional Chief Secretary, Department of Home, Government of Bihar, the Director General of Police, Government of Bihar, the Inspector General of Police, Government of Bihar, the Senior Superintendent of Police, Patna and the Superintendent of Police City (West), Patna.

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.