Supreme Court reverses judgement of remand passed by Justice Ramesh Chand Malviya in a case from Munger

In Brajesh Kumar @ Birjesh Kumar Singh vs. The State of Bihar (2026), Supreme Court's Division Bench of Justices Sanjay Kumar and K Vinod Chandran delivered a 30-page long judgement dated May 12, 2026, wherein, it reversed 9-page long judgement of remand dated July 4, 2025 passed by Justice Ramesh Chand Malviya of Patna High Court. The Supreme Court's judgement was authored by Justice Chandran. 

Justice Chandran observed: "35. The prosecution has failed to establish the constant demands of dowry, a bitter matrimony or any other circumstance which could lead to a conclusion that the family of the husband or the husband alone had instigated or perpetrated the crime of dowry death or subjected her to cruelty leading to the death. Sadly, the prosecution has completely failed to bring forth the nature of the burn injuries suffered by the victim, which could have, on analysis by a forensic expert, garnered an expert opinion as to whether it was a homicide, a case of fatal self-harm or as argued by the defence, purely accidental. We have to emphasise in this context the absence of the postmortem and unsatisfactory explanation offered on that count. 36. The case set up by the defence of the husband having declined the entreaties of the family of the wife to marry her sister assumes relevance, especially in the context of the delayed FIR registered at the home town of the deceased while her marital home, where the incident occurred was at Mirzapur and she succumbed at a hospital in Allahabad. The defence evidence led, also indicate a happy marriage and a caring husband; which has not been controverted effectively by the prosecution in cross examination. In the circumstances of the valid defence evidence, we could also rely on the dying declaration, exculpating the accused, as a corroborative piece of evidence, making believable the version of accidental burn injuries. 37. The defence evidence was given a complete go by without any valid reasons, despite the substantive testimonies and credible documents produced, remaining uncontroverted. The prosecution has failed to establish the charges beyond reasonable doubt and the attendant circumstances coupled with the defence evidence brings forth a probable hypothesis of innocence. The trial courts would do well to bestow equal attention to the defence evidence as that bestowed on the prosecution evidence. There is no cause to approach the defence evidence with distrust, suspicion or even scepticism."

He pointed out that "The accused is not obliged to prove his/her innocence and if a reasonable doubt is raised either from the unsatisfactory evidence led by the prosecution or from the evidence led by the defence its benefit should inure to the accused; which is the reasonable hypothesis of innocence as laid down" in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116. 

Justice Chandran observed: "A valid defence plea, substantiated through testimonies of independent witnesses and documents, as in this case, tested alongside the sketchy evidence led on behalf of the prosecution ought to have raised the judicial antenna of caution especially when the standard of proof is that of proof beyond reasonable doubt." It has been held in Swaran Singh vs. State of Punjab (1957) 1 SCR 953 in travelling from ‘may be true’ to ‘must be true’ the whole of the distance should be paved with ‘legal, reliable and unimpeachable evidence’.

In the penultimate paragraph, the judgement reads: "38. Before leaving the matter, we are constrained to notice the clear travesty of justice which has occurred in the above case, putting on the dock seventeen persons for reason only of having marital ties with the victim who, in all probability, sustained burn injuries in an accidental fire at her matrimonial home. The High Court also should have bestowed better care in disposing of a criminal appeal from a conviction for an offence alleged to have been committed a quarter century back. The casual approach is evident from the remand order made for reason only of lack of opportunity to cross-examine certain witnesses, which testimonies were inconsequential and the impugned order of the Sessions Court having considered only those witnesses led in the trial of the accused, appellant herein." It concluded: "39. We allow the appeal and acquit the appellant/accused reversing the order of conviction passed by the Sessions Court and the order of remand passed by the High Court. We had released the accused on bail, which if carried out, the bail bonds shall stand cancelled. It goes without saying that if the accused is still in custody, he shall be released forthwith if not wanted in any other case." 

Granting leave, the Justice Chandran observed:" Leave granted. 2. A serious procedural deviation, resulting in a graver travesty of justice is alleged; of two trials, from two final reports on the same First Information Report, having been proceeded with against seventeen persons leading to conviction of only one of them in the second trial, despite the further investigation having unearthed no evidence against the fifteen accused. The appellant, the hapless husband of a woman who succumbed to burn injuries in her matrimonial home, has been in the dock for a quarter of a century on the accusation of marital cruelty and dowry death. The prosecution is also blamed of having failed to bring in material evidence; adduced by the defense, which the investigators ought to have detected before the charge sheet was filed. 3. The two cases were clubbed together after considerable evidence was led in both separately. Later, after further evidence was adduced jointly, they were de-tagged and adjudicated individually. In the first case the father-in-law and the mother-in-law, the two accused arrayed, were acquitted. Fourteen family members of the husband were acquitted in the second case wherein the husband alone stood convicted. The impugned order remanded the matter to the trial court on the premise of the convicted accused not being present when the witnesses were examined in the other case, before clubbing. The appeal is filed by the sole accused who stood convicted." 

Justice Malviya's order indicated that before clubbing, in the instant case PW1 to PW6 were examined and after clubbing, PW13 to PW15 and DW1 to DW5 were examined. The trial court had also recorded that the oral testimonies of only those witnesses examined in the presence of the accused in this case would be evaluated to come to a just decision; scrupulously done avoiding any prejudice to the accused. PW1 to PW6 examined herein are respectively PWs 1, 11, 3, 2, 12 & 4 in the first case; the first two, associates of the family, then a cousin, two brothers and the father of the deceased. PW13 proved the sanction order and PW14 &15 testifying in the joint trial were another brother of the deceased and the Investigating Officer (I.O) respectively. PW5 to PW10 examined in the first case were not even cross-examined by the two accused and their testimonies were completely eschewed even in the first case, the order of acquittal in which was produced. 

In his order, Justice Malviya had concluded:"10. It is settled principle of law that all evidence taken in a trial or other proceedings is recorded in the presence of the accused. This principle is fundamental to fair trial as it allows that accused to hear the evidence, observe the demeanor of witnesses, and instruct their legal counsel accordingly. Essentially it guarantee accused’s right to cross-examine witnesses and to ensure transparency and to allow the accused to understand the case against him and present their defence effectively. Legally, both the cases cannot be disposed off together, so, separate trial is required to be concluded after examining the remaining witnesses within six months in accordance with law. 11. The learned trial court, before clubbing both the sessions trial vide order dated 05.03.2009, should have considered the aforesaid exigency and that being so, the amalgamation happens to be contrary to the spirit of law. Consequent thereupon, the judgment impugned has been passed on the basis of illegal procedure so followed by the learned Trial court and ultimately, leading to illegality which is being found incurable and consequently, it leads to a failure of justice. Hence, the same happens to be against the spirit of law, whereupon, is set aside judgment accordingly conviction and sentence is set aside. 12. The matter is remitted back to the learned Trial Court to proceed with the trial independently right from the stage after examination of PW-6. Learned trial court is directed to complete the trial within six months but, with a caution that there should be proper presence of the witnesses. The appellant is on bail, hence he is directed to surrender before the Trial Court within ten days of the receipt of copy of this judgment by the Trial Court and their bail bonds stand cancelled. Further, Superintendent of Police, Munger is directed to procure attendance of all the witnesses so that, the trial be concluded at an earliest. Learned Trial Court is directed to grant bail to the current appellant after surrendering before the Trial Court within stipulated time. If the appellant did not surrender within stipulated time then the Trial Court is directed to take coercive steps against him." Now the Supreme Court has reversed the judgement of remand by Justice Malviya.  

The case in question arose from an incident of the year 2000. The Division Bench of the Supreme Court was of the opinion that a remand at this stage would only prolong the matter. The counsel for the accused agreed to a  consideration on merits by the Court at the expense of losing one appellate forum, i.e., the High Court, to which the State Counsel also did not object. Therefore, the Division Bench proceeded to consider the matter on its merits. 

The allegation arose from an incident where the wife of the appellant was first taken to the District Hospital, Mirzapur from her marital home on April 13, 2000 allegedly with 40% burns sustained and then re-admitted to a private nursing home, at Allahabad, where the poor lady succumbed a few days later. The Court wondered as to whether the it was accidental, as contended by the husband and the in-laws or whether it was self-inflicted or induced, the causation being the cruelty which arose from incessant dowry demands, is the moot question arising. The victim died on May 2, 2000 and an FIR was registered at the Kotwali Police Station, Munger, which is situated the parental home of the deceased, on June 1, 2000. It arrayed the husband and his brother; the other family members was the father-in-law and the mother-in-law. 

The Court perused the FIR and also the charge sheets in both the cases received from the trial court. The FIR was registered on a complaint dated May 15, 2000 by the father, filed before the Chief Judicial Magistrate’s Court, Munger, one under Section 156(3) of the Criminal Procedure Code. FIR No.272 of 2000 dated June 1, 2000 resulted first, in Final Report No.625 of 2000 dated October 31, 2000 leading to Sessions Case No.592 of 2001 and then, Final Report No.215 of 2005 dated May 31, 2005 which led to the instant case numbered as Sessions Case No. 504 of 2006.

The complaint spoke of the marriage and the continued demand of dowry of Rs.50,000/- despite sufficient gifts having been given by the bride’s family and the frequent complaints made by the deceased when she came to her parental home. Even during the pregnancy of the victim, she is said to have been harassed which resulted in the childbirth occurring in the parental home of the mother. The misdeeds continued even after the son was born and there was also an allegation of forced abortion, eventually leading to the death at the marital home. It was also alleged that since the marital family was very influential the entire incident was hushed up. In addition to the husband, his relatives, including immediate in-laws, were arrayed only for reason of the marital home having housed a joint family.

In the Final Report of October 31, 2000 after a brief narration of the complaint of constant demands of dowry pursuant to the marriage of the daughter of the complainant with Brijesh Kumar, it was categorically stated that on investigation, the allegation of offences under Sections 498A, 304B read with Section 34 of the Indian Penal Code, 1860 appeared to be true. It was noticed that the father-in-law and mother-in-law were in judicial custody and that the Superintendent of Police (S.P) had directed charge-sheet to be filed against the said accused considering the investigation against them as completed and directed investigation against the other 15 persons in the FIR to be continued. The charge-sheet first filed against the two accused gave rise to Sessions Case No.592/2001, which ended in acquittal of both the accused by judgment dated 17.12.2012. On the very same day, judgment dated December 17, 2012 was passed in Sessions Case No.504/2006 wherein the first accused alone was convicted, and the other 14 accused acquitted. Sessions Case No.504 of 2006 arose from a final report filed by a different I.O after further investigation finding no further evidence against the 15 accused remaining.

Issue arose of the trial court having taken cognizance based on a closure report filed by the I.O finding no evidence against the 15 persons who were not charged at the first instance; urged, placing reliance on Mariam Fasihuddin vs. State by Adugodi Police Station 2024 SCC OnLine SC 58 and two trials having been proceeded with on the very same allegation of dowry death of the wife of the appellant. The first charge sheet filed; despite finding the offences made out against all the 17, charged only the two who were in judicial custody on the directions of the S.P who also directed further investigation against the others; such directions being clearly impermissible. The second final report stated that no evidence was found available on the record against all the others and there was no cause to raise a supplementary charge against the 15 accused, by another officer who was not examined before the trial court.

Justice Chandran observed: " 10. We are quite conscious of Section 158 of the CrPC which provides that a report be sent to the Magistrate through a superior officer of police, if the State Government by general or special order so directs. Apposite would be reference to Section 173 (3) which provides in such circumstances that the report should be submitted through that superior officer to the Magistrate and pending orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation. Pertinently, the facts of the present case reveal that the report itself was filed by the officer-in-charge of the police station which makes it clear that there was no special or general order passed by the State Government under Section 158. Further, pertinent is the fact that the FIR was registered on the complaint forwarded under Section 156(3) on the directions of the CJM. The order of the S.P hence was clearly without any authority." 

He noted that the decision in Mariam Fasihuddin case frowned upon a supplementary charge sheet filed without any new material unearthed by the investigating agency; wherein the further investigation directed
was with respect to the dropping of two offences under the IPC. However, here the first charge sheet finds material against the other accused also which makes it imperative that we dwell upon the primacy of the Court which takes cognizance.

In H.N. Rishbud vs. State of Delhi (1954) 2 SCC 934, the Court was concerned with an investigation carried out under the Prevention of Corruption Act, 1947, by a police officer below the rank of a Deputy Superintendent of Police, which could have been carried out only with the order of a Magistrate. It was held that investigation is the first step, followed by cognizance and then the trial itself. But an invalid investigation does not nullify the cognizance or the trial based thereon, since a defect or illegality in investigation has no bearing on the cognizance taken or the trial. Though a police report under Section 190 of the CrPC is the material on which cognizance is taken, a valid or legal police report is not the foundation of the jurisdiction of the Court to take cognizance. If, therefore, cognizance is in fact taken on a police report vitiated by breach of a mandatory provision relating to investigation, the trial cannot be set aside merely on that ground, unless the illegality in the investigation is shown to have brought about miscarriage of justice as provided under Section 537 of the CrPC of 1898 (Section 465 of CrPC of 1973). Finding also that the invalidity of an investigation is not to be completely ignored by the court during trial, it was held that if the breach of such a mandatory provision is brought to the knowledge of the court at a sufficiently early stage, the court, while not declining cognizance, will have to take necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.

In Abhinandan Jha v. Dinesh Mishra 1967 SCC OnLine SC 107, the Court emphasized the prerogative of the I.O while carrying out an investigation into an offence reported, as juxtaposed with the powers of the jurisdictional court in taking cognizance. The Judges dealt with Sections 154 to 176 of the CrPC of 1898 under the heading ‘Information to the Police and their powers to investigate’ together with Section 190, relating to the jurisdiction of the criminal court in inquiries and trials; which are almost in pari materia with CrPC of 1973. Finding very elaborate provisions made for securing an investigation into a reported offence, without causing any harassment to the accused and at the same time completion without unnecessary or undue delay, it was held that the manner and method of conducting the investigation are left entirely to the police and the Magistrate has no power to interfere with the same. After investigation, if the officer finds no sufficient evidence or reasonable grounds justifying forwarding the accused to the Magistrate, Section 169 provides that the accused shall be released on his executing a bond to appear before the Magistrate. 

On the other hand, if sufficient evidence or reasonable grounds are found to make out an offence, then the accused has to be forwarded to the Magistrate under Section 170 if the offence is bailable or otherwise released on bond requiring his appearance before the Magistrate. However, be it invocation of Section 169 or Section 170 the police officer has to submit a report to the Magistrate under Section 173, either a closure report; finding no offence made out or a charge sheet; with material allegations based on valid evidence leading to the offence. It was categorically held relying on King Emperor vs. Khwaja Nazir Ahmad 71 IA 203, 212 that the functions of the judiciary and the police are complementary and not overlapping, leaving each to exercise its own functions, subject only to the right of the court to intervene in an appropriate case. When the jurisdictional court has no right to interfere less said the better about the interference made by a superior officer, herein the S.P, especially when the I.O forms an opinion that a case for trial is made out.

It was categorically held that the formation of opinion as to whether or not there is a case to place the accused on trial is exclusively with the officer in charge of the investigation. If a closure report is filed; finding no case made out, it is not open to the Magistrate to direct the police to file a charge sheet. It was also clarified that this is not to say that the Magistrate is absolutely powerless since the Magistrate is competent to proceed to take cognizance of the offence, on the materials revealed in the investigation, under Section 190 which imports a judicial discretion on the Magistrate to receive such report under Section 173. The Magistrate, hence, is not bound to accept the opinion of the police that there is no case to place the accused on trial as it is always open to take a contrary view on the facts disclosed in the report.

In Ram Naresh Prasad vs. State of Jharkhand (2009) 11 SCC 299 held that when the police file a report, colloquially termed a ‘closure report’; finding no sustainable case made out, the Court cannot direct a charge sheet to be filed, but could always take cognizance on the basis of the material in the report or direct further investigation. H.S. Bains v. State (U.T. of Chandigarh) (1980) 4 SCC 631 & Ramswaroop Soni vs.State of M.P. (2020) 18 SCC 327 reiterated that when a closure report is filed finding no offence made out, the Court has three options; (i) to accept the same and close the proceedings or (ii) take cognizance of the matter on the materials in the report or (iii) direct further investigation. It is thus open to the Magistrate on submission of a closure report to look into the material facts disclosed in the report and form an opinion as to whether it constitutes an offence and take cognizance of the offence under Section 190(1)(b). To buttress this position, Abhinandan Jha3 made reference to Section 169 of the Code which provides that even if the police officer finds on investigation that there is no reasonable ground or sufficient evidence to put the accused on trial, the officer while releasing the accused has to take a bond for appearance before the Magistrate, if required. The primacy of the Court to take cognizance or deny it is the law discernible from the very provisions of the CrPC. 

 In the instant case the first charge sheet was filed only against the two accused and investigation was continued against the other 15 accused arrayed in the FIR, on instructions of the S.P, which should have been left to the Court taking cognizance, especially when the charge sheet found a trial enabled against all the accused. On submission of the first charge sheet and if there is felt a need for further investigation, ideally it should have been done with the orders of the Court and the commencement of trial ought to have awaited the completion of such investigation. But the cognizance taken by the Court against the fifteen accused, on the basis of the subsequent final report cannot be faulted since though the report on further investigation found no fresh material, the first report found the offence made out against all the accused, which was also before Court when the closure report was considered.

There could be claimed an irregularity but there is no illegality, miscarriage of justice or prejudice caused to the accused since split trials, in the same offence is not unheard of, which we will now deal with. Useful reliance can be placed on the decision of this Court in Banwari v. State of U.P.1962 SCC OnLine SC 98, wherein the two accused were convicted under charges of Sections 302 & 307 read with Section 34 of the IPC. The Magistrate committed three cases to the Sessions Court two with respect to the two murders and the other for attempt to murder, all by gunshot injuries. The Sessions Court modified the charges and consolidated the three cases, permitting evidence to be adduced in the first case and relied on that evidence in the other two cases. The incidents occurred in quick succession and this Court held that though Section 235 is not applicable, joint trial was justified under Sections 234 & 239 of the Code. When separate commitments are made of distinct offences not coming within the exception to Section 233, they cannot be tried at one trial. But, if there are separate commitment orders; (i) of persons who could be tried together or (ii) of the same person for offences which could be tried together, the accused could still be tried at one trial. Persons accused of committing a particular offence or offences jointly or in the course of the same transaction are not put up for trial at the same time, oftener than ever for reason of some being not available. When they are later made available and subsequently committed, the Sessions Judge is not bound to have two separate trials, one with respect to each commitment, if the trial in the first instance has not commenced.

A committal order just gives the Sessions Court cognizance over the trial of the persons committed and is not the basis of the cognizance taken for trial. If there is no prejudice to the accused, multiple committal orders can be consolidated to try the accused at one trial, provided it is justified under Sections 233 to 239 of the CrPC of 1898 (Sections 218 to 223 of the CrPC of 1973). It was held that ‘…the validity of a joint trial before the Sessions Judge is dependent on the fact whether the provisions of the Code justify one joint trial or not’ (para 25). The above discussion makes it crystal clear that the opinion in the final report filed is not decisive of the cognizance and the committal order/s is/are not determinative of whether the trial is single/separate/joint; which is at the exclusive discretion of the Court.

Herein, though triable together, before the report of further investigation was filed, the first trial commenced. Despite the futile exercise of a joint trial in between, the cases were separated before final adjudication. The relevant witnesses led on behalf of the prosecution and the defence were identical and no prejudice is caused to the accused, which persuades us to consider the matter on its merits.

Supreme Court observed: "21. It is distressing that no postmortem was conducted of the deceased who died in the hospital at Allahabad nor is any wound certificate produced. A person who sustained serious burn injuries having been admitted to the hospital, intimation would have gone to the jurisdictional police station; both at Mirzapur and Allahabad but not produced or even enquired into. It is also pertinent that the witnesses examined to prove the allegations are the friend of the father of the deceased (PW1), the father-in-law of one of the brothers of the deceased (PW2), her brothers (PWs 3 to 5 & 14) and her father (PW6). The testimonies of all the prosecution witnesses indicate that though the incident occurred on 13.04.2000 they were informed only on 21.04.2000; effectively controverted in the defense evidence.

PW1 says that the information was passed on to PW6 on April 22, 2000 and he along with PW6 went to see the victim at the hospital on April 22, 2000. PW2 deposed that his son-in-law i.e. PW14, the brother of the deceased went to the hospital at Allahabad on 26.04.2000 and met the victim. PW14 however deposed that on April 22, 2000 he saw his sister, completely burned, at Allahabad and on April 30, 2000 his father returned to Munger for arranging money for the treatment of his sister. It is also the testimony of the brothers and the father of the deceased that on May 2, 2000 when the victim died, a hasty cremation was conducted, to avoid a postmortem. It is very unlikely that having reached the hospital long before the death, the family members of the victim would have abandoned the victim in the company of her in-laws against whom allegations are raised of dowry demands. What is more disturbing is that the I.O has not attempted to bring out what transpired after the victim sustained the burns especially since the incident occurred at Mirzapur, where she was first admitted to the District Hospital and then later taken to a hospital at Allahabad where she succumbed after a few days’ hospitalization. The explanation of the relatives of the deceased is only that the accused are very influential in Allahabad which however does not
prevent an I.O from inquiring in the neighboring State while carrying out an investigation, bringing to light the facts as they existed.

All the witnesses confined themselves with a bland refrain about the demand of a dowry of Rs.50,000/- commenced from the date of marriage till her death. Admittedly, a son was born to the couple in the meanwhile, and the son was kept with the father after the death of the mother. 

PW15 was the I.O who does not speak anything worthwhile as to the investigation carried out. His deposition, as found from the impugned order marks the FIR and describes the marital home of the deceased and records that there is no incident reported at the  police station at Mirzapur where the marital home is situated. The statement of the doctor at the hospital at Allahabad in which the victim was treated is said to have been recorded but the said person was not summoned as a witness for the prosecution. It was also stated that on enquiries made at the police station having jurisdiction over the location in which the hospital is located, he was informed that a statement of the victim was recorded before the Magistrate. It is further deposed that it was not produced since it was not provided; clearly a lackadaisical approach. What assumes significance is that the I.O. categorically deposes that but for the family members of the complainant, none in the neighborhood came forward to speak of an acrimonious marriage, quite relevant in the context of the defense set up by the accused.

Supreme Court's judgement reads:" 28. We would, for the moment, not reckon the dying declaration which absolves the accused in toto. It is trite that a dying declaration though delicate, is a crucial piece of evidence if found to be trustworthy from the overall circumstances, enabling a conviction on that basis alone. However, when the dying declaration is exculpatory in nature, then necessarily the entire evidence would have to be analysed and if the other circumstances form a complete chain, the exculpatory statement of the deceased will have to be treated with some circumspection or at times eschewed completely.' 

In the present case, from the evidence at least it is clear that when the dying declaration was recorded, the deceased was admitted to the hospital and looked after by her husband and in-laws. The statements made in the above circumstances, presumably when the injured victim was looked after entirely by the accused will have to be treated with some circumspection and hence, we do not place any reliance on the same, at this point. 

The Court noted that it cannot but opine that the testimonies were in the nature of a soulless reiteration of a demand of Rs.50,000/-, having been made right from the inception of the marital life till the death occurred. The defense produced certificates of investments made in the joint names of the husband and the wife; far exceeding the demand alleged. DW1, the accused himself mounted the box to speak of an idyllic marriage and narrated the incident, the medical certificate indicating that his left hand was also scorched in the episode, while trying to save his wife. The accused also testified of informing his father-in-law on April 14, .2000 at 9:18 am through telephone, the call receipt evidencing the same. He had also sent telegrams on the same day at 08:35 am. The Kisan Vikas Patra and National Saving Certificates taken out in the joint name of himself and his wife, as also the LIC policy in his name, with his wife as the nominee were produced. The documents relating to the treatment of the deceased and the receipts with respect to the expenses incurred. The prescriptions during the treatment were also exhibited, belying the very contention of PW6 having returned to his village to arrange finance for his daughter’s treatment. 

The Court recorded that the trial court found that the entire documents from the hospital were not produced and it is not clear as to what medicines were administered to the patient, which in fact ought to have been procured and produced by the prosecution. The dying declaration was rejected on the ground that the same was not forwarded through the jurisdictional CJM, the same having been received at the trial court, as directly forwarded from the office of the ADM. The efficacy of the dying declaration was further doubted since DW5 had not recorded it in the question-and-answer form. As to the demand of dowry, the trial court relied on the testimony of the witnesses regarding the demand made of Rs.50,000/- from 1995 till 1999. It was found that the time when the victim was taken to the hospital is 1:00 am on 14.04.2000 and there is discrepancy between the time of incident and the time claimed by the defense.

It also noted that the enquiries carried out at the police station having jurisdiction over the hospital, where the death occurred, clearly indicates a dying declaration having been made which was not produced by the prosecution. The dying declaration was recorded by an Executive Magistrate and the doctor of the hospital, in which the victim was admitted, certified her fitness to make such a declaration. There is no hard and fast rule that a dying declaration should be in the question-and-answer form. The dying declaration, even if not reckoned to absolve the husband and the family members, at least raises a reasonable doubt regarding their culpability coupled with the other circumstances. The family of the victim reached the hospital long before her death and it is very unlikely that they left their child alone when they were arranging money for her treatment. 

The Court noted:" 34. Neither was a postmortem conducted nor was there an immediate FIR registered, at least in the hometown of the victim. The exact time when the fire occurred is discernible only from the statement in the dying declaration that it was around 10:45 pm. The time stated could only be an approximation and there would have been some time taken in arranging a transport and taking her to the hospital, first to the District Hospital at Mirzapur where the Doctor deposes, the victim was brought at 1 am. There was no attempt by the prosecution to bring forth the distance between the marital house of the deceased and the hospital. The victim was transferred to a higher medical center at Allahabad on the very same day for better treatment; all of which was carried out by the husband, as is indicated from the documents produced. The oral evidence led by the prosecution fails to prove the case set up of a demand of dowry or the animosity the husband is alleged to have been harboring against the wife. The hollow statement made of demand of dowry echoed listlessly by the witnesses; all relatives of the victim, raise not a grain of doubt but a sea of suspicion regarding the entire story set up.

Supreme Court sets aside bail denial order by Justice Anjani Kumar Sharan

In Sonu Kumar @ Sonu Kumar Chaudhary vs. The State of Bihar (2025), Supreme Court's Division Bench of Justices Suryakant and Joymalya Bagchi  passed a 4-page long order dated October 31, 2025, wherein, it granted leave and set aside the 2-page long order dated March 17, 2025 by Justice Anjani Kumar Sharan of Patna High Court. The Supreme Court concluded:"It is, however, not in dispute that further investigation is still going on and the appellant, after he was subjected to custodial interrogation, is presently lodged in judicial custody. In such circumstances, when investigation is yet to be completed, the conclusion of trial will doubtless take some time, and the appellant has already served some time in custody, it seems to us that the appellant can be released on bail at this stage. 3. Consequently, the impugned order is set aside and the appeal is allowed. "

The appellant had prayed for enlargement on bail in FIR of 2019 registered at P.S. Bettiah Town, District West Champaran under Sections 406, 420, 467, 468, 471, 472, 120(B)/34 IPC and Section 3 of the Bihar Protection of Interest of Depositors Act, 2002. The appellant, his brother and other family members had constituted a Cooperative Society, known as SWARN lndia Multi State Credit Co-Operative Society Ltd.. The investors were allured to invest in the Society with a promise of handsome returns. The amounts so deposited were, however, allegedly misappropriated; leading to registration of multiple FIRs against the appellant, his brother and other associates. The subject FIR was one of those cases in which the appellant was arrested on January 16, 2024. There were about nine other cases registered against him. The appellant claimed that he was neither a Director nor an authorised signatory of a bank account of the Society.  The State counsel pointed out that as per the allegations contained in the FIR, the appellant was the Managing Director of the Society. 

Upon hearing the case in the High Court, Justice Sharan noted that the petitioner along with other co-accused were said to have defalcated the money of the customers deposited in the Company Swarn India Multi Estate Credit Cooperative Society Limited. APP for the State vehemently opposed the bail petition. Justice Sharam concluded: "6. In the facts and circumstances of the case and the criminal antecedents of the petitioner, I am not inclined to enlarge the petitioner on bail. The prayer for bail of the petitioner is hereby rejected at present." Supreme Court has set aside this order.  

Justice Arun Kumar Jha sets aside judgment by 1st Additional Sessions Judge -cum- Special Judge, Katihar in a case from 2010

A decision can be considered to be perverse only when there is some conscious violation of a rule of law or of procedure.

– In Kristamma Naidu vs. Chapa Naidu, 1894 ILR 17 Mad 410.

“It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.”

-In H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority vs. Gopi Nath, 1992 Supp (2) SCC 312 

“A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse."

– Justice R.F. Nariman referred to the decision in Kuldeep Singh vs. Commissioner of Police, (1999) 2 SCC 10 in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49.

In Md Amir Hussain vs. The State of Bihar & Anr. (2025), a criminal revision petition, Patna High Court's Justice Arun Kumar Jha delivered a 5-page long judgement dated September 1, 2025, wherein, he concluded: " For bringing a conviction, in a complaint case, it is settled proposition of law that the averment made in the complaint petition and the evidence of the complainant witnesses are to be read together. However, it is the evidence which would prove the case against the accused persons. Though the complaint petition is not expected to be encyclopedic in nature, not mentioning the name of the petitioner in the complaint petition and the complainant himself not naming the petitioner for any assault upon him, throws the whole issue open. Though this Court is not expected to go into the contentious issues and re-appreciation of the facts and evidence, still complete absence of the name of the petitioner in the complaint petition for participating in the occurrence dated 02.12.2010 and subsequent omission of the name of the petitioner in the evidence of the complainant, who deposed as C.W. 3, this Court is inclined to entertain the criminal revision petition as perversity is apparent on the face of record. Hence, the judgment and the order of conviction dated 08.03.2022 passed by learned 1st Additional Sessions Judge -cum- Special Judge, Katihar in Complaint Case No. 3427 of 2010 are set aside as against the petitioner. 7. Accordingly, the present criminal revision petition stands allowed." It was one of the 15 judgements delivered on September 1, 2025. 

The criminal revision petition was filed by the petitioner for setting aside the judgment and order of conviction, both dated March 8, 2022 passed by 1st Additional Sessions Judge -cum- Special Judge, Katihar in Complaint Case No. 3427 of 2010, CIS No. 3427 of 2010, whereby and whereunder the petitioner was convicted for the offence punishable under Section 323 of the Indian Penal Code and acquitted from other charges and the petitioner was released after due admonition under the provisions of Section 3 of the Probation of Offenders Act, 1958. The petitioner's counsel submitted that the petitioner faced the trial arising out of a complaint case of 2010 wherein the petitioner was made accused along with four other co-accused persons for the offences punishable under Section 323 of the Indian Penal Code and Sections 3(1) (ii)(x)(xiv) of the SC/ST (Prevention of Atrocities) Act. He also submitted that the allegation against the petitioner and other co-accused persons was that they abused the complainant by taking his caste name and also assaulted him. There are two dates of occurrence, December 2, 2010 and December 11, 2010, respectively. In the first occurrence, the complainant had named Rafique Alam @ Kalu and Mustaque Alam, who abused the complainant and put him down on the earth and started pressing his neck. This occurrence took place on December 2, 2010. There was no mention of the name of the petitioner for abusing the complainant or for assaulting him. In the second alleged occurrence dated December 11, 2010, the complainant made averment that while a panchayati was being held, the complainant and other persons were assaulted by the petitioner and other co-accused persons. But the trial court disbelieved the second occurrence which was apparent from the impugned judgment but convicted the accused persons for the offence under Section 323 of the Indian Penal Code only. But the finding was perverse since the complainant did not name the petitioner for being involved in the occurrence of assault dated December 2, 2010 either in his complaint petition or in his deposition. 

The counsel further submitted that the trial court disbelieved the story of commission of offence under Sections 3(1)(ii)(x)(xiv) of the SC/ST (Prevention of Atrocities) Act. The evidence of the two witnesses was against the version of the complainant and the same could not be relied on for convicting the petitioner under Section 323 of the Indian Penal Code. There was no further corroborative evidence rather these witnesses were not eye witnesses and from perusal of their evidence it would appear that they were tutored witnesses of the employer of the complainant. 

The counsel pointed out that even from the evidence of the witnesses of the complainant, it came on record that the petitioner was only involved in 'panchayati' for bringing out an amicable settlement. Since the trial court disbelieved the story of assault during 'panchayati', nothing remained in the matter against the petitioner and considering the facts and circumstances, it was apparent that the impugned judgment by the 1st Additional Sessions Judge suffered from infirmity and the same could not be sustained against the petitioner. Justice Jha found the submission of the counsel convincing.

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.

Patna High Court's Justice Dr. Anshuman's bail order for MLC's son vindicated by Supreme Court's judgement?

In Udhaw Singh vs. Enforcement Directorate (2025), Supreme Court's division bench of Justices Abhay S. Oka and Ujjal Bhuyan observed:"Our attention is invited to a decision of a coordinate Bench in the case of Union of India through the Assistant Director v. Kanhaiya Prasad, 2025 SCC OnLine SC 306 After having perused the judgment, we find that this was a case where the decisions of this Court in the case of Union of India v. K. A.Najeeb (2021) 3 SCC 713 and in the case of Senthil Balaji v. Deputy Director, Enforcement Directorate 2024 SCC OnLine SC 2626 were not applicable on facts. Perhaps that is the reason why these decisions were not placed before the coordinate Bench. The respondent-accused therein was arrested on 18th September, 2023 and the High Court granted him bail on 6th May, 2024. He was in custody for less than months before he was granted bail. There was no fining recorded that the trial is not likely to be concluded in a reasonable time. In the facts of the case, this Court cancelled the bail granted by the High Court. Therefore, there was no departure made from the law laid down in the case of Union of India v. K. A.Najeeb and Senthil Balaji." 

This observation of Justice Oka led division bench of Supreme Court made on February 17 2025 seems to vindicate the judgement of Dr. Anshuman of Patna High Court in Kanhaiya Prasad case, which has been set aside by Justice Bela Trivedi led division bench of Supreme Court on February 13, 2025. It is apparent that he is implying lapse on the part of the counsels of the respondent. On behalf the respondent, Senior Advocate. Notably, Ranjit Kumar had argued that the respondent has not been shown as accused in the predicate offence. 

Also read: Supreme Court directs Bihar MLC's son to surrender within one week in PMLA case, sets aside Patna High Court's bail order

Justice Oka led bench passed it's judgement after hearing an appeal from Udhaw Singh, the appellant from who was  arrested for the offence under Section 3 of the Prevention of Money Laundering Act (PMLA), 2002. The appellant has undergone incarceration for a period of 1 year and 2 months. There are 225 witnesses cited, out of which only 1 has been examined. Therefore, the trial is not likely to be concluded within few years. Hence, a decision of this Court in the case of Senthil Balaji v. Deputy Director, Directorate of Enforcement will apply. Paragraphs 27 and 29 of the said decision read thus:

"27.Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act. When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary." It further pointed out that "the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial."

Justice Oka recorded that the Solicitor General of India has stated that in the facts of the case, the decision in the case of V.Senthil Balaji may be followed. Hence, the appellant deserves to be enlarged on bail, pending trial.

The division bench concluded: "the appellant shall be produced before the Special Court within a maximum period of one week from today. The Special Court shall enlarge the appellant on bail on appropriate terms and conditions including the condition of regularly and punctually attending the Special Court and cooperating with the Special Court for early disposal of the case. A further condition shall be imposed directing the appellant to surrender his passport, if any." The appeal was allowed. The verdict was authored by Justice Oka. 

The appeal was against the judgement dated May 25, 2024 by Justice Jaspreet Singh of the High Court of Judicature at Allahabad, Lucknow Bench. The appeal was filed on December 3, 2024.