High Court dismisses appeal of Bihar Finance Department against an Electrician

In the State of Bihar through Principal Secretary, Finance Department vs. Hirdayanand Tiwari, Patna High Court's Division Bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy, heard the appeal filed by the State against the judgement dated December 13, 2021 delivered by the Single Judge Bench of Justice P. B. Bajanthri and endorsed it in their judgement dated September 3, 2024. Besides Principal Secretary, Finance Department, Bihar, there were four appellants, namely, the Principal Secretary, Minor Irrigation Department, Bihar, the Engineer in Chief, Minor Irrigation Department, Bihar, the Co-ordinator-cum-Chief Engineer, Tube Well Project, Muzaffarpur and the Executive Engineer, Tube Well Division, Motihari. The Division Bench judgement concluded: "We find absolutely no reason to interfere with the judgment of the learned Single Judge". It provided additional reasons in support of the judgement of the Single Judge.

The Single Judge Bench had heard Hirdayanand Tiwari's prayer who was appointed as an Electrician in the Tube-well Department. Initially, he was extended the pay-scale of Rs. 1200-1800. The Pay-scale was revised from time to time. In the year 1996, the post of Electrician was revised among other posts. The petitioner was extended benefit of Rs. 4000-6000, thereafter, the Department noticed that such extension of pay-scale of Rs. 4000-6000 by the petitioner in the year 1996 with reference to revised pay-scale as on 01.01.1996 was incorrect. In the result, an order was passed for re-fixation of pay and order for recovery. It was the subject matter of litigation before this Court in CWJC No. 10325 of 2012 and it was decided on March 8, 2019 in favour of the petitioner. The impugned order dated September 19, 2019 was passed re-fixing the petitioner’s pay w.e.f. January 1, 1996 in the pay-scale of Rs. 3050-4590. The petitioner petitioner was initially extended the pay-scale of Rs. 1200-1800 for the Electrician Post. He was given corresponding revised pay-scale from time to time. As on January 1, 1996, the Electrician post carries the pay-scale of Rs. 1200-1800 as was revised to Rs. 4000-6000. He submitted that the concerned respondent’s decision dated September 19, 2019 was not with reference to the service record in which petitioner’s pay-scale has been mentioned as Rs. 1200-1800 at the time of appointment to the post of Electrician. Hence, the impugned order dated September 19, 2019 was liable to be set aside and petitioner be extended the benefit of pay-scale of Rs. 4000-6000 that was revised on January 1, 1996 and he was entitled to consequential benefits.

Justice Bajanthri had set aside the impugned order dated September 19, 2019. His judgement reads: "Petitioner is entitled to revised pay-scale of Rs. 4000-6000 as on 01.01.1996 in the Electrician Cadre, the same shall be extended. If the petitioner is entitled for arrears of pay and revision of pension, the same shall be calculated and disbursed to the petitioner within a period of three months from the date of receipt of this order. Accordingly, the present petition stands allowed with a cost of Rs. 10,000/- which shall be paid to the petitioner by the respondents."

It was this judgement which was unsuccessfully challenged by the Principal Secretary, Finance Department, Government of Bihar. The Division Bench judgment observed:"At the outset, it is trite that when an employee is promoted to a new cadre or regularized in the services; there cannot be any discrimination on the basis of the source from which the promotion was conducted or the regularization was made, especially when, in the promoted post or the regular post the employee continues with the very same responsibilities, obligations and duties as a person who was promoted or appointed from another source." The judgement was authored by Chief Justice Vinod Chandran. 

Judgements of Additional Sessions Judge-III, Muzaffarpur, Judicial Magistrate, Ist Class, Muzaffarpur perverse and illegal: Patna High Court

In Manoj Rai Vs.State of Bihar, Justice Bibek Chaudhuri of Patna High Court observed: "In the instant case, going through the lower court record as well as Judgments passed by the trial court and the appellate court, this Court is of the view that this is one of the rare cases where the examination of evidence by both the courts below were perverse."

The Court noted that "Both the courts below convicted the accused under Section 25 (1-B) (a) of the Arms Act. Practically, the penal provision was wrongly recorded by both the courts below. Section 25 (1-B) (a) states that whoever acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3 shall be punishable with imprisonment for a term which shall not be less than two years but it may extend to five years and shall also be liable to fine. Therefore, for all practical purposes, both the courts below convicted the accused under Section 25 (1-B) (a). The penal provision states minimum punishment of two years. When minimum punishment is prescribed by a penal statute, the appellate court cannot pass any order of punishment less than minimum punishment prescribed by the statute. On this score also the impugned Judgment is illegal and inoperative." 

The order reads: "For the reasons stated above, I find that both the courts below acted illegally and with material irregularity in convicting and punishing the accused for the offence punishable under Section 25 (1-B) (a) of the Arms Act. It is unfortunate that the accused person/petitioner is in Correctional Home for about seven months. The petitioner be acquitted and released from the Correctional Home at once." The judgement was passed on April 18, 2024.

The criminal revision was directed against the Judgment and order dated August 16, 2016, passed by the Additional Sessions Judge-III, Muzaffarpur in Cr. Appeal No. 116 of 2008, whereby and whereunder the petitioner’s appeal was dismissed and the Judgment and order of conviction and sentence, passed by the Judicial Magistrate, Ist Class, Muzaffarpur, on November 29, 2008, convicting the petitioner for the offence punishable under Section 25 (1-B) (a) read with Section 26 of the Arms Act and sentencing the petitioner with imprisonment for a term of one year with fine of Rs. 1,000/-, in default further imprisonment for one month.

The case arose out of P.S. Case No.-26 Year-2002 Thana- Siwaipatti, Muzaffarpur. It was registered under Section 25(1-b)/26 of the Arms Act on the basis of a suo motu complaint filed by the Officer-in-charge of the said Police Station, namely Prem Shankar Singh. He alleged that on June 15, 2002, he along with other members of Police force and village Chowkidars went to village Koharia to conduct investigation of the Siwaipatti P.S. Case No. 26 of 2002. After completion of part investigation and search, the Police party was returning to the Police Station at about 8:30 P.M. When they were proceeding by Police Jeep towards village Ghosaut, the informant saw a person proceeding towards South with a rifle in his hand. 

The Police Officer asked him to stop, but seeing the Police party he tried to flee away. Immediately, the informant directed the members of the force, who were with him, to chase the said person. The Police party chased him and apprehended the said person. Hearing hue and cry, local people assemble at the spot.
The Police Officer/informant called two persons amongst the villagers, who were present at the spot. To witness the process of search and seizure one Mohan Paswan and Rajesh Kumar volunteered themselves. The informant conducted search of the apprehended person in presence of above named independent
witnesses and recovered one country made rifle loaded with 1.315 bore cartridge from his hand. The rifle was country made. The apprehended person could not produce any document in support of his possession in respect of the firearm. The Police Officer also seized one live cartridges of 1.315 bore from his right hand side pocket of his pant in present of the independent witnesses. 

The firearm and ammunition were seized and the accused was formally arrested. Then they returned to the Police Station and Officer-in-charge of the said Police Station submitted a written complaint against the accused, on the basis of which above named police case was registered.

The investigation was taken up by PW.5. During investigation, he examined witnesses visited the spot, send the seized firearm and ammunition to the expert to ascertain as to whether the seized material is a country made rifle or not and whether it was in working condition or not. After getting the expert’s report Police Submitted Charge-sheet. 

The Trial of the case was conducted by the Judicial Magistrate, Ist Class at Muzaffarpur and by his Judgment dated 29th November, 2008, the accused was convicted and sentenced to suffer rigorous imprisonment for two years for committing offence under Section 25 (1-B) (a) of the Arms Act. The accused was also directed to pay fine of Rs. 1,000/-, in default to suffer imprisonment for further period of one month.

The accused preferred an appeal before the Sessions Judge at Muzaffarpur. The said appeal was finally heard by the Additional Sessions Judge-III, Muzaffarpur. 

By his Judgment dated 16th August, 2016 in Cr. Appeal No. 116 of 2008, the learned Additional Sessions Judge maintained the order of conviction, modified the sentence directing that the petitioner shall suffer rigorous imprisonment for one year. The sentence of payment of find was maintained by the Additional Sessions Judge.

The order of the appellate court was under challenge in the instant revision.

The Advocate for the petitioner at the outset that the Additional Sessions Judge in the impugned Judgment mechanically affirmed the Judgment of the trial court without independent assessment of evidence on record. Therefore, the counsel for the petitioner first refers to the Judgment of the trial Court. During trial prosecution examined seven witnesses. Amongst them PW.1 is a seizure list  witness. PW.2 and PW.3 are Chowkidars, who accompanied the Police Party to the spot. The prosecution claimed that search, recovery and seizure list firearm and ammunition were made in presence of P.W.2 and P.W.3. PW.4 is the Arms expert, who examined the said firearm. PW.5 is the Investigating Officer of this case. PW.6 is the Assistant Sub Inspector of Police attached to the Siwaipatti Police Station at the relevant point of time. He received the complaint from the Officer-in-charge and registered Siwaipatti P.S. Case No. 26 of 2002. PW.7 is the informant, who was the Officer-in-charge of the Siwaipatti P.S. at the relevant point of time.

The Advocate for the petitioner pointed out that two witnesses were examined in support of defence.
He submitted with regard to evidence adduced by the witnesses on behalf of the prosecution that P.W.1 Mohan Paswan was cited as a seizure list witness by the prosecution, but during evidence he did not support the prosecution case. He stated that Police Officer obtained his signature on a blank paper at the spot on 15th June, 2002. He did not see any writing on the seizure list. No firearm or ammunition was seized from the possession of the accused in his presence. The Advocate for the petitioner submitted that PW.2 and 3, who are the Chowkidars under the Police Department also did not support the prosecution case. From their evidence it is crystal clear that they did not apprehend the accused. It appears from their evidence that when the members of the force were chasing the accused, they were sitting in Police Jeep, so they personally did not conduct any raid to arrest the accused. However, it is stated by them in course of their evidence that after apprehension, the accused was brought in front of the Police Jeep and the Officer-in-charge of the Police Station seized one firearm and two ammunitions from the possession of the accused.

The petitioner's Advocate submitted that other witnesses namely P.W.4, P.W.5 and P.W.6 are formal witnesses. They did not see the actual incident of arrest of the accused and recovery of firearm and ammunition from the possession of him. P.W.4 is an Arms expert, who opined that the seized firearm was in working condition. The firearm was produced during trial, but the trial court recorded in his Judgment
that the seized firearm was produced in two pieces. The butt of the rifle was not attached to its barrel and trigger. He pointed out that search and seizure was not supported by the independent witness. No Police Officer or Police personnel, who actually apprehended the accused was examined by the prosecution. The firearm was produced in broken condition. There is no explanation as to whether the firearm that was produced before the trial court during trial is the seized firearm, which was recovered from the accused. The prosecution did not come forward with plausible explanation as to whether the firearm was broken in
Police Malkhana or it was seized in broken condition.

It was pointed out by the Advocate for the petitioner that the accused/petitioner examined two independent witnesses during trial. Both the witnesses stated that the accused had some dispute with the local M.L.A. Under the instruction of the local M.L.A., Police arrested him and implicated him in a false case under the Arms Act and the accused never possessed any illegal firearm and ammunition as alleged by the prosecution. 

The petitioner submitted that the prosecution failed to comply with the provision contained in Sub-section 4 of Section 100 of the Cr.P.C. There is nothing on record that before making a search, the Officer or other person about to make the search called upon the independent witnesses and respectable inhabitants of the locality in which the place to be search is situated or any other locality or of any locality if no such inhabitants of the said locality is available or is willing to a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The Court observed: "I am not in a position to accept such contention made by the learned Advocate for the petitioner relying on Section 100 (4) of the Cr.P.C. Simply for the reason that Section 100 relates to search of a closed place or any building, warehouse etc. In the instant case search was made in open field. According to prosecution some people assembled hearing the hue and cry at the time of apprehension of the accused. Two of them were called and seizure was made in presence of them. Thus, non-compliance of
Section 100 (4) of the Cr.P.C. does not make the search and seizure of firearm illegal."

It pointed out that "the Judgment of this Court in the case of Lakhindra Rai Vrs. The State of Bihar, reported in (2007) 3 PLJR 362 is also not applicable because in the said report a decision, a Coordinate Bench has dealt with provision of Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985, where special provisions are laid down under the Special Act as the prerequisite of search in a case under the N.D.P.S. Act. The decision of the Division Bench of this Court in Guddu Rai Vs. The State of Bihar, reported in (2012) 4 PLJR 1064 is also not applicable under the facts and circumstances of this case because in the said reported decision the Police officer failed to get the seized firearm examined by a ballisticate part. Question of examination of a firearm by a ballisticate part arises when the firearm is used for firing a shot to a person. In the instant case there was no such case of firing made out by the prosecution. 

The order records that "In Guddu Rai Vs. The State of Bihar, the Division Bench of this Court relied upon the decision of the Hon’ble Supreme court in Nachhattar Singh & Ors. vs. State of Punjab, reported in AIR 1976 SC 951, where recovery was made form the accused person and it was held by the Apex Court that the recovery ought to have been proved by examining the witnesses, who had witnessed the recovery."

The learned A.P.P. In-charge has supported the prosecution case as well as the decision rendered by the trial court and affirmed by the appellate court in course of his submission. 

The Court underlined that in the criminal revision, "it is not permissible for a revision court to examine and scan the evidence on record adduced by the prosecution and defence until and unless a gross perversity is made out against the petitioner."

The Court assigned the reasons. The trial court observed that PW.1 was did not support the prosecution case, but surprisingly held that he was present at the place of occurrence on the date and time of incident. Even assuming that P.W.-1 was present at the place of occurrence does it prove that he was a seizure witness when he specially submitted that his signature was obtained by the Officer-in-charge of the Police Station on a blank paper. It is important to note that PW.1 was not declared hostile by the prosecution. Therefore, the evidence of PW.1 ought to have been made applicable against the prosecution and it ought to have been held that search and seizure of firearm was not made in present of any independent witness.

The Court observed that "when search and seizure is made on an open filed, it may not be possible for the

Police Officer to find out independent witness. There is no harm if the search and seizure was made in presence of other Police Officers, who took part in the raid. Not a single Police Officer was examined in this case on behalf of the prosecution to support the raid and search and seizure. The Officer-in-charge, who allegedly seized a firearm did not take any signature of any of the Police Officers, who accompanied him. The Chowkidars (PW.-2 and 3) stated on oath that during apprehension of the accused they were sitting inside the Police vehicle.

The Court took note of another important aspect of the matter which is that "the Officer-in-charge did not prepare any label in respect of the seized articles. The seized firearm was not sealed at the spot or even at the Police Station without identification label and official seal of the firearm, how could P.W.-4 state in his report that the firearm, which was recovered from the possession of the accused was placed before him for examination. There is no seal and label with signature of the accused and the witnesses on the firearm and cartridges to prove that those articles were seized from the possession of the accused."  In such a backdrop, the Court's order reads: "I am not in a position to accept the report of the Arms expert in connection with this case." The Court granted  the liberty to the petitioner's advocate to act on the server copy of this Judgment.

Patna High Court grants liberty for filing Civil Review petition to recall High Court's order in a food adulteration case

Patna High Court's bench of Justices P. B. Bajanthri and Alok Kumar Pandey disposed of Md. Islam v. State of Bihar (2024) Miscellaneous Jurisdiction Case (MJC) No.1538 of 2022 as not maintainable but granted liberty to file Civil Review Petition for recall of High Court's order by Chief Justice Sanjay Karol and Justice S. Kumar bench in a food adulteration case. The was filed on August 18, 2022 and registered on August 22, 2022. The case arose out of Civil Writ Jurisdiction Case/3332/2022 which was filed on February 22, 2022, registered on February 25, 2022 and disposed on April 25, 2022. 

The petitioner had prayed for issuance of appropriate writ/direction/order for release of the Tata LPT 2515 Model Truck bearing Registration No. NL01D3907 Chasis No. 426031GTZ128632 and ENGINE No. 60G62495487, which was seized in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur for the offences punishable under sections 272 and 273 of the Indian Penal Code (IPC), pending in the Court of A.D.J. -2nd cum Special Judge (Excise Act) Muzaffarpur, which was sent to the Collector cum District magistrate, Sitamarhi for its confiscation. 

The section 272 of the IPC deals with “Adulteration of food or drink intended for sale". It states that "whoever adulterates any article of food or drink, so as to make such article noxious as food or drink intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 

The section 273 of the IPC deals with "Sale of noxious food or drink". It reads: "whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”.

The bare perusal of the Food Safety & Standards Act, 2006 demonstrates that all laws prevailing in the country related to to food, their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto was expressly and impliedly repealed. It is crystal clear that sections 272 and 273 of the IPC are repealed provisions of the IPC. Therefore, seizure for the offences punishable under sections 272 and 273 of the IPC in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur is legally questionable.   

The section 89 of the Food Safety & Standards Act, 2006 gives it an overriding effect over all other food related laws. It reads: "Section— 89 “Overriding effect of this Act over all other food related laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” Notably, the Parliament in its wisdom has used the word ‘all food related laws ‘to avoid ambiguity and to declare that the Special Statute would prevail when it is in conflict with any other laws relating to food. In such circumstance, although the legislature did not amend Sections 272 and 273 of the IPC, by virtue of the overriding effect of the Food Safety & Standards Act, 2006, these provisions of IPC can be considered as impliedly repealed. The use the word ‘over all other related laws’ is not superfluous. The use of the term ‘over all other related laws’ describes the intent of the Parliament to avoid conflict of laws by consolidating of food related laws into a single law having jurisdiction over the whole of India. 

It is also noteworthy that Section 97 (2) of the Food Safety and Standards Act provides that- “if there is any other law for the time being in force in any State, corresponding to this Act, the same shall upon the commencement of this Act, stand repealed and in such case, the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply as if such provisions of the State law had been repealed”.  It is eminently apparent that the action of the police under sections 272 and 273 of IPC in connection with Sahebganj P.S. Case No. 444 of 2018, Muzaffarpur is unwarranted. The police not being Food Safety Officer under Food Safety and Standards Act, 2006 are not empowered to investigate into the offences mentioned specially in the 2006 law.

The State had submitted before the High Court that during the pendency of this writ petition, final order of confiscation has been passed by the Confiscating Authority on November 30, 2021, for which notices were issued to the owner of the vehicle in question. The petitioner's counsel disputed this submission saying, "no notices were issued to the petitioner of the initiation of confiscation proceedings and same has been passed without any notice to him". But the writ petition was disposed of with liberty to the petitioner to avail the statutory remedy under the Excise Act against the order passed by the Confiscating Authority. Justice S. Kumar had authored the judgement in CWJC No. 3332 of 2022.

The judgement in Miscellaneous Jurisdiction Case No.1538 of 2022 was authored by Justice Bajanthri. It reads:"the present M.J.C. is filed for modification of order dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022. Petitioner in his writ petition has prayed for certain relief relating to release of the subject matter of seized vehicle with reference to order of the learned Additional District Judge-II-cum-Special Judge (Excise Act), Muzaffarpur. It is stated in the relief column “which has been sent to the learned Collector cum District Magistrate, Sitamarhi for its confiscation.” Such typographical error has been crept in petitioner’s writ petition. As long as petitioner’s writ petition is not rectified, it is not appropriate to rectify the order of the Co-ordinate Bench dated 25.04.2022 passed in C.W.J.C. No. 3332 of 2022." The judgement reserved liberty to the petitioner "to file Civil Review petition to recall the order dated April 25, 2022 passed in CWJC No. 3332 of 2022."