Provisions under Bihar Prohibition and Excise Act suffer from infirmities:Patna High Court

In Mahendra Prasad Singh @ Mahendra Singh vs. The State of Bihar through the Principal Secretary Excise and Prohibition Department, Government of Bihar & Ors. (2025), in his 29 page long judgement dated September 1, 2025, Patna High Court's Division Bench of Justice S. B. Pd. Singh and Acting Chief Justice P. B. Bajanthri concluded:"the respondent authorities are directed to release the house of the petitioner henceforth which was seized in connection with Prohibition Case No. 1217 of 2024." The respondent authorities were: The State of Bihar through the Principal Secretary Excise and Prohibition Department, Government of Bihar, the Excise Commissioner, Bihar Excise, Patna, the Divisional Commissioner, Magadh Division, Patna, the District Magistrate-cum-Collector, Patna, the Superintendent of Excise, Madh Nishedh Bihar, Patna, the S.H.O. of Excise, P.S. Patna and the Investigating Officer, Excise and Prohibition Case no. 1217/2024, namely Devendra Singh, S.I. Excise and Prohibition, P.S. Patna, District Patna. The judgement was authored by Justice Singh. 

The petitioner had sought issuance of writ/writs, order/orders, direction/directions in the nature of Mandamus seeking directing the respondents S.I. Madh Nishedh Excise, P.S., Patna, so that to immediately release the seized ground floor building, which was earlier given on rent to respondent no. 8, on rent each month Rs. 1500/- total area 300 sq. feet ground floor building of the petitioner, which was earlier on rent utilized by Randhir Kumar, the respondent no. 8, but the same room was seized by the S.H.O. of Excise P.S., Patna in connection with Prohibition case no. 1217/2024, dated 21.05.2024 registered under Sections 30(A), 32 and 56(B) of Bihar Prohibition and Excise Act, 2016 and (Amendment) Act, 2022, which was illegally seized by the police. He also prayed for directing the respondent to immediately release the ground floor of building house of the Bihar, which was earlier seized by the police in Excise Case but the petitioner is being the house owner of the said premises, which was used by the respondent no. 8 after agreement on rent. It also sought a direction for the respondent to freeze/seize the house of the petitioner which is subject matter of Excise Case which was seized by the S.H.O. of Excise P.S., Patna but that property which was utilised by the tenant that is respondent no. 8, so far, the petitioner was given the said property ground floor house on a rent on the basis of an agreement dated October 1, 2023, and in the said ground floor there is a water logging, because in the said premises the respondent no. 8 have kept some goods items, therefore, in view of the under Section 45 of the Cr. P. C., the said building order for custody and disposal property pending trial in certain cases must be released in favour of the petitioner, because the petitioner has got no knowledge about the said building, which was used by the tenant respondent no. 8 and doing some illegal business having without knowledge of the petitioner.  

The counsel of the petitioner submitted that from bare perusal of the FIR, it was evident that the name of the petitioner transpired in the present case only for the reason that he was the owner of the said building from where the alleged recovery has been made. The premises in question was given on rent is not in dispute. There was not even iota of evidence which could suggest that the petitioner was facilitating the culprit or providing access for storage of incriminating articles. Either directly or indirectly, he did not contravene Section 30 of the Bihar Prohibition and Excise Act, 2016 and for this reason his premises was not liable to be confiscated under Section 56 of the Act. The counsel also submitted that the petitioner had given the said house on rent much prior to the alleged incident and for this reason, no case would be made out against the petitioner as he was not in possession of any incriminating article in contravention of any provisions of the Act and neither he was having any knowledge of running of illegal business by the tenant Dr. Randhir Kumar. When the petitioner was able to satisfy the authorities that the premises in question was let out on rent and nothing came on record suggesting the knowledge of the petitioner about the storage of several types of Homeopathic medicines in the premises in question, seizure of premises of the petitioner appears to be arbitrary, unreasonable and illegal. These authorities did not take into consideration the rights of the petitioner under Article 19 (1) (g) and Article 300 (A) of the Constitution of India, whereunder, the petitioner had a right to own the property and he had also  got right to carry on any occupation, trade or business. The action of the authorities was arbitrary, unreasonable and shows complete non-application of mind when the fact was crystal clear that the premises owned by the petitioner was undisputedly being used by the tenant under a valid deed of agreement. 

Referring to the specific offences under the Bihar Prohibition and Excise Act, 2016 under which the petitioner was charged, Justice Singh observed:"....it seems that whenever offence punishable under this Act has been committed, any premises or part thereof used for committing any offence might be seized/confiscated and released upon penalty. It leaves no doubt that a premises can be seized and even confiscated and auctioned merely upon its involvement in any offence under the Act. This is indeed a draconian provision and so it must be used with complete circumspection. The existing provisions of the Act gives unfettered and unguided and arbitrary powers to the authorities. In the absence of any specific guidelines, such powers can be abused or misused and such powers can be exercised arbitrarily insofar as alleged proven charge and commensurate penalty could be seen in the better legislation- like provisions of Criminal Procedure Code read with Indian Penal Code, where the sentence/conviction is proportionate to the proved charges. 12. We have noted some disturbing trends with regard to the aforesaid provisions. Though the Act talks about necessary directions, guidelines, regulations, instructions to be issued by the State Government with respect to mode and manner of search and seizure, destruction and confiscation, we have provisions only under Section 57 B of the Act and Rules 12 B, 13 B and 14 of the Bihar Prohibition and Excise Rules, 2021 to meet such situations. These provisions are clearly insufficient and authorized officers are very likely to misuse the provisions and the decisions are taken arbitrarily."

Justice Singh added: "....there is no subjective assessment under Section 56 of the Act regarding involvement of the premises and the hardship which will be faced by the persons apparently without any fault of their own. Let us take certain examples to make issue clear. As in the present case, the premises was given on rent and apart from the tenant/lessee, the owner has been made accused. We can take another example of the joint family owned premises. Suppose a person of the joint family keeps a bottle of liquor in the premises without knowledge to other inmates, will that premises be seized and sealed and confiscation proceeding will be started ousting all the inmates of joint family property simply on the ground that the law provides so? Third example could be taken of a government quarter. If any recovery is made from a government quarter, will the State come forward and seize/seal/confiscate and auction the property? Then another issue which is to be considered is that there is no subjective relationship between the quantity of liquor seized and the premises sealed or the penalty imposed as we could decipher from the aforesaid provisions. Even the Rules, though provide for taking status of the individual, nature of his involvement in the crime, location of the premises and quantum of intoxicant recovered while deciding the quantum of the tine, yet the Rules also provide that the fine shall not be less than Rs. one lakh. This is simply absurd as to whether there is recovery of 100 ml. of intoxicant or 1,00,000 liters, minimum fine shall be Rs. one lakh. The provisions of law discussed here-in-before even give complete discretion to the confiscating authorities with regard to imposition of penalty since no guidelines have been provided. This may create anomalous situation as the jurisdictional authority in one area, in similar circumstances, may impose a lesser penalty, whereas for the same act, the jurisdictional authority in another area may impose higher penalty. 14. Enactment of law and rules in such manner may make such laws and rules arbitrary and the same goes against the spirit of Article 19 (6) of the Constitution...."

Article 19(6) of the Constitution of India reads: "Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,— 
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or otherwise”.

Justice Singh recalled the decision of the Supreme court in Romesh Thappar vs. State of Madras, reported in 1950 SCC 436, considered the possibility of law concerned being applied in unconstitutional manner and held such law be declared void.

He also referred to paragraph 85 of the Court's decision in E .P. Royappa vs. State of Tamil Nadu and another, reported in AIR 1974 SC 555. It reads: “85. ...Articles 14 and 16 strike at arbitrariness in State action an ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Arts. 14 and 16. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Art. 311 but not to Articles 14 and 16. We must, therefore, proceed to consider whether the transfer of the petitioner first to the post of Deputy Chairman and then to the post of Officer on Special Duty was arbitrary, hostile and in mala fide exercise of power. What was the operative reason for such transfer: was it the exigencies of public administration or extra administrative considerations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for colaterial reasons? These are the questions which call for our consideration”.

Justice Singh noted that although these observations were made in a different context, yet the underlying principle remain the same. There cannot be any arbitrariness in the matter of state policy and principles. 

Justice Singh also referred to the Supreme Court's decision in Menka Gandhi vs. Union of India, reported in (1978) 1 SCC 248, wherein it was held that that every law has to be just, fair and reasonable; otherwise it will be considered unconstitutional. 

Justice Singh observed that the provisions of law as framed under the Bihar Prohibition and Excise Act "does not appear to be perfect law and suffers from a number of infirmities. However, since the provisions of Act or the Rules framed therein are not in challenge, we refrain ourself from making any further comments on the provisions under the Act."

With regard to the case before him, he noted that it was undisputed that the premises in question was let out on rent. The said lease deed was prepared for 11 months between the parties which was effective from October 1, 2023 to August 30, 2024 and this period covered the alleged date of occurrence, pertaining to this case. He underlined in the penultimate paragraph of his judgement that in such a situation, "the petitioner could not be made to suffer for being the landlord/owner of the premises in question if recovery of some intoxicant materials have been made without his knowledge or intention."

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.  

 

Bihar Government challenges quashing of excise case by Justice Bibek Chaudhuri Supreme Court

In Narendra Kumar Ram vs. The State Of Bihar Through The Sect. Excise Commr. Cum Inspector General of Registration, Bihar & Ors. (2025), Justice Bibek Chaudhuri of Patna High Court had passed a 5-page long order dated February  13, 2025, whereby, he quashed the Excise Police Station Case No. 559 of 2024 (Special Case No. 572 of 2024), dated May 2, 2024, registered for the offences punishable under Section 37 of the Bihar Prohibition and Excise Act, 2016. The writ petition was allowed.  

Bihar government has challenged this order before Supreme Court's Division Bench of Justices Sanjay Karol and Sandeep Mehta. It came up for hearing on August 20, 2025.

The case before the High Court was that the petitioner was allegedly found in an inebriated state at his temporary residence in Kishanganj on May 2, 2024, based on a breath analyzer test conducted by an excise team. He was immediately arrested and an F.I.R. was registered against him. The case was  before the Additional District and Sessions Judge-IV cum Special Judge-2 (Excise), Kishanganj.

The petitioner's counsel submitted that the entire prosecution case is based solely on the breath analyzer test, which cannot be a conclusive proof of consumption of alcohol. He also submitted that no confirmatory blood or urine test was conducted, which is mandatory under law.

Justice Chaudhuri recalled Supreme Court's decision in Bachubhai Hassanalli Karyani v. State of Maharashtra, reported in 1971(3)SCC930, wherein, the Court 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.

In the case before the High Court, there was 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 stated that in the above-stated report, the Supreme Court 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 petitioner's counsel had submitted that the petitioner had visited Electro Homeopathy Institute, Patna on April 16, 2024 for stomach infection treatment, where he was prescribed liquid homeopathic medicines containing alcohol-based solvent. This could have led to the blood alcohol concentration reading of 41/mg/100 ml. in the breath analyzer test, but no further medical examination was conducted to establish the possibility of consumption of alcohol. The counsel for the petitioner also submitted that the F.I.R. and subsequent disciplinary action were initiated due to professional vendetta. The District Magistrate,Kishanganj directed for registration of the F.I.R. and personally pushed the case for departmental action, including suspension, which shows mala fide intent. The petitioner had earlier returned certain financial bills submitted by the Drawing and Disbursing Officer (DDO), Kishanganj, citing procedural errors, which might have triggered retaliatory action against him. 

The counsel for the petitioner further submitted that the criminal case and subsequent departmental action violate his fundamental rights under Articles 14 and 21 of the Constitution of India. The prosecution is based on arbitrary action, without following proper legal procedures, and the suspension without concrete evidence is also not acceptable in the eyes of law.

The counsel for the State had submitted that the petitioner was found in an inebriated condition at his residence with a breath analyzer test, confirming alcohol consumption of 41 mg./100 ml. The Bihar Prohibition and Excise Act, 2016 prohibits alcohol consumption in any form and government servants are specifically barred under Rule 4 of the Bihar Government Servants Conduct Rules, 1976. He further contends that the case was registered lawfully, the breath analyzer test was accurate and no procedural irregularities occurred. The petitioner’s claim of mala fide action are baseless and an attempt to evade legal consequences.

Justice Chaudhary had observed: "....this Court has no other alternative but to hold that the authorities failed to consider the observation of the Hon'ble Supreme Court, and based on breath analyzer report, which cannot be said to be a conclusive proof of consumption of alcohol, F.I.R. has been registered." Now the matter is before the Supreme Court. 

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 says, "no coercive steps shall be taken as against the petitioner" after Justice Prabhat Kumar Singh refused anticipatory bail

In Meera Devi vs. The State of Bihar (2025), Supreme Court's bench of Justices B.V. Nagarathna and K.V. Viswanathan passed an order dated July 18, 2025 saying, "Till the next date of hearing, no coercive steps 1shall be taken as against the petitioner herein vis-a-vis FIR NO.1099 OF 2024 dated 21.09.2024 of the Police Station Kishanganj." The petitioner has challenged the order dated April 28, 2025 by Justice Prabhat Kumar Singh of Patna High Court. Justice Singh's order reads:"6. Considering the fact that petitioner is owner of the seized vehicle , prayer for anticipatory bail of the petitioner is refused." 

The petitioner had approached the High Court apprehending arrest in a case registered for the offences punishable under Section 30(a) of Bihar Prohibition and Excise Act. As per prosecution case, 250.500 liters of illicit liquor was recovered from the seized scorpio vehicle of which this petitioner was the registered owner. The counsel for the petitioner had submitted that no incriminating material was recovered from conscious possession of the petitioner. The petitioner had no concern with the alleged recovery but he was made accused in this case only on suspicion. 

Supreme Court grants relief, Patna High Court's Justice Ramesh Chand Malviya had declined anticipatory bail

In Deepak Kumar vs. The State of Bihar (2025), order of Supreme Court's Division Bench of Justices Abhay S. Oka and Ujjal Bhuyan records that "a charge-sheet has been filed. Therefore, there is no occasion to arrest the appellant so long as he continues to appear before the Trial Court." Its order dated May 9, 2025 reads:"Accordingly, the interim order dated 7th April, 2025 is made absolute subject to condition that the appellant shall continue to appear before the Trial Court regularly and punctually and shall cooperate with the Trial Court for early disposal of the case." 

Earlier, on April 7, 2025, the Supreme Court had passed an order saying, "the petitioner shall not be arrested in connection with First Information Report (FIR) No.JAM P.S.Case No.30/2024 dated 9th January, 2024 registered at Jamui Police Station, District Jamui, Bihar subject to condition that the petitioner shall always cooperate for investigation."

Relying on 118-page long judgement dated May 17, 2019 of Patna High Court's full bench of Justices Hemant Kumar Srivastava, Aditya Kumar Trivedi and Ashutosh Kumar in the case of Ramvinay Yadav v. State of Bihar PLJR 2019 (2), Justice Ramesh Chand Malviya of Patna High Court had passed an order dated January 24, 2025 declining anticipatory bail to the petitioner in a case registered for the offence punishable under Section 30(A) of the Bihar Prohibition and Excise Act, 2022. 

Notably, in Ramvinay Yadav's case, Justice Aditya Kumar Trivedi's order had directed the office "to place the records of this case before Hon'ble the Chief Justice for the needful". It stated that the majority opinion on question No.2 of the reference is the opinion rendered by him and Justice Hemant Kumar Srivastava. The action by the Chief Justice is required to be ascertained.

Question No. 2 was: Whether the law laid down in the case of Ashok Sahani vs. The State of Bihar (Cr. Misc. No. 26109 of 2017) and as further explained in the case of Barun Kumar vs. The State of Bihar (Cr. Misc. No. 42985 of 2017) lays down the law correctly or whether the conflicting view in the case of Manish Kumar (supra) reflects the correct position of law?

Question No. (1) was: Whether the provisions of Section 438 Cr.P.C. continue to apply in spite of the bar created under Section 76 (2) of the Bihar Prohibition and Excise Act, 2016 and as to whether such an application under Section 438 Cr.P.C. for anticipatory bail is maintainable?

Question No. (3) was: Whether the learned Single Judge in the case of Manish Kumar @ Lokesh Kumar vs. The State of Bihar Cr. Misc. No. 21578 of 2017 vide an order dated 10.08.2017 while referring the matter for decision by a Larger Bench in deference to the judgment in the case of Ashok Sahani (supra) was justified in declaring it per incurium keeping in view the fact that the judgment was by a Co-ordinate Bench in view of the law laid down by the Supreme Court in the case of State of Bihar vs. Kalika Kuer reported in (2003) 9 SCC 448 and the law laid down in the case of Rana Pratap Singh Vs. State of U.P. (FB) reported in 1996 Criminal Law Journal 665, and further keeping in view the opinion expressed in the case of Barun Kumar (supra) that such an issue of vires under the High Court Rules could have been decided by a Division Bench Only?

Question No. (4) was: Whether the Division Bench in the case of Manish Kumar (supra) vide order dated 06.11.2017 was justified in not resolving the dispute on the ground of the pendency of the two petitions before the Apex Court relating to the challenge raised to the vires of the Bihar Prohibition and Excise Act, 2016?

Question No. 5 was: Whether even if the matter was pending before the Supreme Court, the Division Bench in the case of Manish Kumar (supra) was denuded by any disability either on the ground of legality or propriety to not proceed to answer the reference made to it more particularly when there is no pronouncement by the Supreme Court in the issue sought to be resolved, and when the matter did require an immediate resolution keeping in view the conflicting views of this Court?

The Chief Justice had formulated these questions/issues for consideration as well as adjudication of Full Bench. The Full Bench was constituted to dispel the existing confusion relating to entertainment, consideration and disposal of anticipatory bail purported to be under Section 438 of the Cr.P.C relating to an offence punishable under Bihar Prohibition and Excise Act, 2016, (amended, effective from 2ndOctober, 2016) by the Chief Justice purported to be in accordance with Chapter-II, Rule-11 of the Patna High Court Rules, being master of the roster. Before coming to terms of reference, which this Full Bench has to answer, it looks obligatory to flash the existing controversy in order to appreciate the legality, propriety of the reference. Since before existing Excise Act 1915 (Bihar & Orissa Act 11 of 1915) has been redrafted and introduced in the background of Article 47 duly couched by Article 19(1)(g) as well as Article 246 of the Constitution of India proclaiming complete prohibition having nomenclature Bihar Prohibition and Excise Act 2016 which has been subject to challenge under so many writs and vide order dated 30.09.2016 passed in connection with C.W.J.C. No.6675/2016 and other allied writs (Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar and Ors. along with others) as reported in 2016 (4) PLJR 369, the same was declared ultra vires against which, State has preferred SLP before the Supreme Court bearing S.L.P. (C) No.29749/2016 and vide order dated 07.10.2016 notices have been issued during midst thereof, operation of the order impugned has been stayed. The aforesaid SLP is still pending. During the intervening period, again there happens to be an amendment in the Bihar Prohibition and Excise Act, 2016 which has been introduced since 2nd October, 2016 which has also been challenged under C.W.J.C. No.8640/2016 (Abay Kumar Mishra vs. The State of Bihar & Ors.) C.W.J.C. No.73098/2016 (Dr. Rai Murari vs. The State of Bihar & Ors.) whereupon, the State preferred transfer petition before the Apex Court and during consideration thereof, notices were issued and further directing to tag with the original SLP(c) Nos.27949-29763/2016 further proceeding was stayed. By such amendment 2016, apart from others Section 76 has been introduced curtaining the right of an accused to ask for pre-arrest bail, that means to say, Anticipatory Bail. 

Section 76 reads: "Offences to be cognizable and Non-Bailable- (1) All offences under this Act shall be
cognizable and non-bailable and provisions of code of criminal procedure, 1973 (Act 2 of 1974) shall apply. 
(2) Notwithstanding anything mentioned in sub-section (1) above, nothing in Section 360 of Code of Criminal Procedure 1973. Section 438 of Code of Criminal Procedure 1973 (2 of 1974) and Probation of Offenders Act, 1958 shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”

The Court recorded: "This sub-clause (2) is the root cause of controversy. As sub-section(2) begins with non-obstante clause, forbidding application of Section 438 Cr.P.C. (as under controversy) apart from others hence, became subject matter of consideration by different Benches (as per roaster). In Cr. Misc. No.26109/2017 (Ashoka Sahani vs. The State of Bihar), the Bench was of the view that on literal interpretation of Section 76(2) of the Bihar Prohibition and Excise Act, 2016 (amended Act) there happens to be complete de-recognition of prayer for anticipatory bail either before High Court or before lower court whereupon observed that no petition for anticipatory bail would be entertainable. In the aforesaid background, the registry was directed not to accept any petition purported to be under Section 438 of the Cr.P.C, levelling defect over maintainability."

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. 

Supreme Court sets aside Patna High Court's order in anticipatory bail case under Bihar Prohibition and Excise Act from Aurangabad

On March 21, 2024, Supreme Court's bench of Justices B.V. Nagarathna and Augustine  George Masih set aside the order of Patna High Court passed on December 12, 2023 by Justice Anjani Kumar Sharan rejecting the application for anticipatory bail from Aurangabad in Chandan Kumar Vs. State of Bihar (2023). 

Prior to this the petitioner had approached the High Court apprehending his arrest in Amba P.S. Case No. 149 of 2021 registered for the offences punishable under Section 30 (a) of the Bihar Prohibition and Excise Act, 2018. Altogether 2541.600 litres of foreign liquor was recovered from the truck. It came ti light that the consignment belonged to the petitioner and his associates. The counsel for the petitioner submitted that petitioner was quite innocent and had committed no offence. No incriminating article was recovered from the conscious physical possession of the petitioner. He had no concern either with the seized liquor or the place of recovery or any trade of liquor. The allegation levelled against him is general and omnibus. He was not apprehended on the spot. He had not consumed liquor. There was nothing on record to indicate the complicity of the petitioner barring the confessional statement of the apprehended person which has no evidentiary value in the eye of law. The High Court had concluded: "Having regard to the facts and circumstances of the case, as petitioner has one criminal antecedent of similar nature, I am not inclined to enlarge him on anticipatory bail. The prayer for anticipatory bail of the petitioner is hereby rejected."

The Supreme Court's order in Chandan Kumar Vs. State of Bihar (2024) recorded that two co-accused have been granted anticipatory bail and three other co-accused are on regular bail. The counsel for the appellant submitted that there is nothing to connect the appellant vis-a-vis the recovery made from the truck and even though the appellant’s name may have been mentioned in the FIR, he was not at the spot when co- accused were apprehended along with foreign liquor. He, therefore, submitted that this is a fit case where anticipatory bail may be granted. 

The Court concluded:"Considering the circumstances on record, in our view, the appellant is entitled to the relief claimed under Section 438 of the Code. We, therefore, allow this appeal and set aside the order passed by the High Court dated 12.12.2023. We direct that in the event of arrest of the appellant, the Arresting Officer shall release the appellant on bail subject to furnishing cash security in the sum of Rs.25,000/- (Rupees Twenty-Five Thousand only) with two like sureties." 

 

Gayanti Devi, Saran resident granted bail in a case under Bihar Prohibition and Excise Act in absence of any criminal antecedent: Patna High Court

Gyanti Devi, the petitioner sought pre-arrest bail in connection with Garkha P.S. Case No. 729 of 2022 registered for the offence punishable under Section 30(a) of Bihar Prohibition and Excise Act because she has got no criminal antecedent.

As per the prosecution story, on November 20, 2022, the informant along with three police personnel was on patrolling duty when he got a secret information that the petitioner and her husband are selling country made liquor in her house. When the informant reached at the place of occurrence at about 05:05 P.M., he saw two persons fleeing. On search, thirty litres of country made liquor was recovered from the back of the house of the petitioner, and, accordingly, a seizure list was prepared. The chaukidar disclosed the name of the two persons as Manoj Kumar Chaudhary (husband of the petitioner) and Gyanti Devi (the petitioner).

The petitioner's counsel submitted that the liquor has been recovered from a place adjacent to the house of the petitioner which cannot be said to be in conscious possession of the petitioner. The APP for the State has opposed the prayer for anticipatory bail of the petitioner.

Taking note of the submission that 30 litres of country made liquor has been recovered from a place adjacent (behind) to the house of the petitioner which cannot be said to be in conscious possession of the petitioner and that the petitioner has got no criminal antecedent, the Court directed that in case of her arrest or surrender within a period of four weeks from today, the petitioner shall be released on bail in connection with Garkha P.S. Case No. 729 of 2022 on furnishing bail bond of Rs. 25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of learned Additional District and Sessions Judge-Second-cum-Special Judge, Excise 1st, Saran, Chhapra subject to the conditions as laid down under Section 438(2) of the Criminal Procedure Code.

The High Court observed that the trial court shall verify the criminal antecedent of the petitioner and in case at any stage it is found that the petitioner has concealed her criminal antecedent, the court below shall take step for cancellation of bail bond of the petitioner. However, the acceptance of bail bonds in terms of the above-mentioned order shall not be delayed for purpose of or in the name of verification. The bail order was passed by Justice Rajeev Ranjan Prasad on June 3, 2024.

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

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

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

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

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

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

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

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

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

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