Patna High Court
Aditya Kumar vs The State Of Bihar on 13 December, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.56984 of 2023
Arising Out of PS. Case No.-312 Year-2022 Thana- FATEHPUR District- Gaya
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ADITYA KUMAR SON OF SRI SUNDERPAL RESIDENT OF 626-B,
SUBHASH NAGAR, P.S.- CIVIL LINE, DISTRICT- MEERUT, (UTTAR
PRADESH), PRESENTLY RESIDING AT B-505, VASIKUNJ
APARTMENT, SAGUNA MORE, PS- RUPASPUR, DISTT- PATNA
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. S.D. Sanjay, Sr. Advocate
Mrs. Priya Gupta, Advocate
Mr. Mohit Agrawal, Advocate
Mr. Lokesh Kumar, Advocate
Mr. Vishal Kumar, Advocate
For the State : Mr. Chandra Bhushan Prasad, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL JUDGMENT
Date : 13-12-2023
Heard learned Senior Counsel for the petitioner and
learned A.P.P. for the State.
2. The present application has been filed seeking
quashing of the order dated 20.04.2023 passed by the learned
Court of Exclusive Excise Court No.1, Gaya in Fatehpur P.S. Case
No. 312 of 2022, dated 28.05.2022, Excise G.R. No. 642 of 2022
whereby cognizance has been taken under Sections 51 and 52 of
the Bihar Prohibition and Excise Act, 2016 against the accused
persons, including the petitioner.
3. Learned Senior counsel for the petitioner submits that
the petitioner, at the relevant point of time, was the Senior
Patna High Court CR. MISC. No.56984 of 2023 dt.13-12-2023
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Superintendent of Police, Gaya and an FIR being Fatehpur P.S.
Case No. 312 of 2022 dated 28.05.2022 came to be instituted
implicating him under Section 51 of the Bihar Prohibition and
Excise Act, 2016. Learned Senior Counsel further submits that the
allegations as alleged in the FIR was that on 26.03.2021, 170 litres
of country-made liquor was recovered from a Santro car but no
FIR was lodged by Sanjay Kumar, S.H.O., Fatehpur Police station
and the petitioner did not take any step to get the FIR instituted,
further on instruction of the senior police officer, the FIR being
Fatehpur P.S. Case No. 112 of 2021 dated 13.04.2021 was
registered. It is next alleged that it came to the knowledge that the
petitioner had initiated disciplinary proceedings against Shri
Sanjay Kumar, the then SHO, Fatehpur for lodging the FIR with
delay and punished him with censure, further that the aforesaid
facts indicated towards the illegal activities of Sanjay Kumar, the
then SHO, Fatehpur and the action taken by the petitioner against
him indicates towards illegality and irregularity of the petitioner
which was an offence under Section 51 of the Bihar Prohibition
and Excise Act, 2016.
4. Learned Senior Counsel for the petitioner submits that
from perusal of the allegations as alleged in the FIR, it would
manifest that even if the allegations are accepted on its face value,
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then also no criminal offence is made out against the petitioner
much less any offence under Sections 51 and 52 of the Bihar
Prohibition and Excise Act, 2016. Learned Senior Counsel further
relied on the pleadings made at paragraphs '5' to '9' of the
quashing application to submit that the petitioner is a bold officer
and did commendable work wherever he was posted as detailed in
those paragraphs. It is next submitted that from perusal of
Annexure-3 to the quashing application, it would manifest that
while the petitioner was the Senior Superintendent of Police,
Gaya, the maximum number of liquor cases were instituted and the
culprits were arrested. It is submitted that the moment the present
FIR came to be instituted after a delay of nearly one year from the
date of occurrence, the petitioner moved this Court by filing Cr.
Misc. No. 39928 of 2022 seeking anticipatory bail. It is further
submitted that this Court vide order dated 08.08.2022 in Cr. Misc.
No. 39928 of 2022 was pleased to grant anticipatory bail after
taking into consideration the fact that under the Bihar Prohibition
and Excise Act, anticipatory bail is not maintainable.
5. It is next submitted that after the petitioner was
granted anticipatory bail, the police investigated the case
threadbare and came to a considered conclusion that petitioner was
innocent and thus submitted Final Form No. 285 of 2022 dated
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10.09.2022
(Annexure-7 to the quashing application) in the Court
of learned Additional Judge, Excise Gaya as mistake of law.
6. Learned Senior Counsel for the petitioner thus
submits that the thrust of the allegation hinges around Sanjay
Kumar, the S.H.O., who had not instituted the FIR, though 170
litres of liquor was recovered from the Santro car. It is further
submitted that the petitioner was the Senior Superintendent of
Police of the district, as such, it cannot be presumed that he was
having information on day-to-day basis with respect to the
concerned police station, the practical problems cannot be ignored.
It is next submitted that in hierarchy there were many officers in
between the petitioner and the officer-in-charge of the concerned
police station to ensure that such occurrences do not take place but
then they have not been made an accused in the present case which
further goes to demonstrate that the present case has been
instituted for some ulterior reason because of animosity in between
the petitioner and some other higher officials.
7. Learned Senior Counsel for the petitioner submits that
the learned trial court differing with the police report took
cognizance of the offences under Sections 51 and 52 of the Bihar
Prohibition and Excise Act, 2016 against the petitioner. It is further
submitted that from bare perusal of the order impugned, it would
Patna High Court CR. MISC. No.56984 of 2023 dt.13-12-2023
manifest that the same has not been passed in consonance with the
law. It is next submitted that from perusal of the penultimate
paragraph of the impugned order i.e. paragraph-13, it would
manifest that the learned Additional Sessions Judge-cum-
Exclusive Special Judge, Excise Court No.1, Gaya recorded:-
"According to legal maxim "Ignorantia facti
doth excusant, Ignorantia juris non-excusant"
and it is found in section 76 and 79 of the
Indian Penal Code, and it states that a person
who commits an offence in the view of a
mistake of fact and in good faith that he was
bound by law, will not be considered as an
offence but "mistake of law" is nothing but
misunderstanding the law, which is not valid
defence, except for kids, lunatics and mad
persons. It is assumed that everyone knows
and understands the law of nation. Hence final
form submitted under mistake of law is not
acceptable."
8. Learned Senior counsel for the petitioner submits that
the reason assigned by the learned Additional Sessions Judge-cum-
Exclusive Special Judge, Excise Court No.1, Gaya is completely
erroneous. It is further submitted that perhaps what escaped the
attention of the learned Additional Sessions Judge is that the
police, after investigation, submitted final form by recording that
the institution of the case was a mistake of law and it is not the
case of the police that the petitioner committed any act on account
Patna High Court CR. MISC. No.56984 of 2023 dt.13-12-2023
of mistake of law. It is thus submitted that the reasoning given by
the learned trial court makes the order impugned vulnerable.
9. Learned Senior Counsel for the petitioner next
submits that in the nature of allegation as alleged in the FIR prima
facie no offence is made out under Section 51 of the Bihar
Prohibition and Excise Act, 2016.
"Section 51. Penalty on excise officer or police
officer refusing to do duty. - Any excise officer
or police officer who, without lawful excuse,
refuses to perform or withdraws himself from the
duties of his office, unless expressly allowed to
do so in writing by the Excise Commissioner or
Collector, or unless he shall have given to his
official superior officer two months' notice in
writing of his intention to do so, or who shall be
guilty of cowardice shall be punishable with
imprisonment which may extend to three months
or with fine which may extend to ten thousand
rupees, or with both."
10. Learned Senior Counsel for the petitioner placing
reliance on Section 51 of the Excise Act submits that an offence
under Section 51 of the Excise Act becomes applicable only when
the police officer without lawful excuse, refuses to perform or
withdraws himself from the duties of his office, unless expressly
allowed to do so in writing by the Excise Commissioner or
Collector.
Patna High Court CR. MISC. No.56984 of 2023 dt.13-12-2023
11. It is submitted that it is not the case of the
prosecution that the petitioner, in any manner, was not willing to
perform his duty, it was just that the petitioner being the Senior
Superintendent of Police of the district may not be knowing what
was seized by the concerned police station, as the Senior
Superintendent of Police of the district is not omnipresent at each
and every place. It is also submitted that the moment it came to the
notice of the petitioner that dereliction of duty has been committed
by Sanjay Kumar the S.H.O. he immediately censured him and
thereafter even the FIR was instituted with regard to the liquor
which was alleged to have been seized from a Santro car.
12. Learned Senior Counsel next draws the attention of
the Court to para 20 of the counter affidavit Annexure-A series to
submit that it is a letter dated 27.05.2022 issued by the Inspector
General of Police, Head Quarter, Bihar, Patna addressed to the
Senior Superintendent of Police, Gaya wherein it has been
recorded that the Inspector General of Police, Head Quarter, Bihar,
Patna has been directed for getting an FIR instituted under Section
51 of the Bihar Prohibition and Excise Act, 2016 against Sanjay
Kumar and the petitioner.
13. Learned Senior Counsel for the petitioner thus
submits that it absolutely does not stand to reason that whether the
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case was of such importance that it required direction to the
Inspector General of Police, Head Quarter, Bihar, Patna for getting
the present FIR instituted. In the same breath, learned Senior
Counsel for the petitioner further submits that even no offence
under Section 52 of the Bihar Prohibition and Excise Act, 2016 is
made out in the nature of allegation as alleged in the FIR.
14. It is next submitted that Section 52 incorporates:-
"52. Penalty for offences not otherwise provided
for. - Whoever does any act in contravention of
any of the provisions of this Act or any rule or
order made there under and punishment for
which has not been otherwise provided for such
contravention, shall be punishable with
imprisonment for a term which shall not be less
than six months but which may extend to seven
years or with fine which shall not be less than
one lakh rupees but which may extend to ten
lakh rupees or both."
15. Learned Senior Counsel thus submits that it is not
the case of the prosecution that petitioner acted in contravention of
any of the provisions of this Act, Rule or order. The allegation is
that he did not act with promptness when it cannot be construed
even practically that petitioner being the Senior Superintendent of
Police of the district would have been knowing that such an
occurrence had taken place in some police station under his
jurisdiction when there are so many officials in between the Senior
Patna High Court CR. MISC. No.56984 of 2023 dt.13-12-2023
Superintendent of Police and the Inspector to take care of such
situation and the moment the petitioner came to know about the
occurrence he censured the S.H.O. and even got the FIR instituted.
16. Mr. Chandra Bhushan Prasad, learned A.P.P. for the
State submits that a counter affidavit has been filed duly sworn by
the Additional Director General of Police (Prohibition), Head
Quarter, Bihar.
17. Learned A.P.P. is not in a position to rebut the
submissions of the learned Senior Counsel for the petitioner that
the police after investigation submitted final form in the case after
threadbare investigation and that offence under Sections 51 and 52
of the Excise Act, 2016 in the nature of allegation as alleged in the
FIR is not made out as it is not the case of the prosecution that the
petitioner deliberately did not act.
18. Considering the submissions made by the learned
Senior Counsel for the petitioner and the fact that the police
submitted final form exonerating the petitioner of the charges and,
prima facie, no offence under Sections 51 and 52 of the Excise Act
is made out and the reason assigned by the learned trial court in
taking cognizance as recorded hereinabove is erroneous, the order
dated 20.04.2023 passed by the learned Court of Exclusive Excise
Court No. 1, Gaya in Fatehpur P.S. Case No. 312 of 2022 dated
Patna High Court CR. MISC. No.56984 of 2023 dt.13-12-2023
28.05.2022, Excise G.R. No. 642 of 2022 whereby cognizance of
the offences under Sections 51 and 52 of the Bihar Prohibition and
Excise Act, 2016 has been taken, is hereby quashed.
19. Accordingly, this application is allowed.
(Satyavrat Verma, J)
Kundan/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 14.12.2023
Transmission Date 14.12.2023
