Patna High Court
Rahul Kumar Banjara vs The State Of Bihar on 20 December, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.58959 of 2023
Arising Out of PS. Case No.-129 Year-2022 Thana- NAGAR District- Vaishali
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RAHUL KUMAR BANJARA S/O LATE RAJ KUMAR YADAV R/O
VILLAGE- NAYA TOLA, JURAVGANJ, PS. KODHA , DIST. KATIHAR
... ... Petitioner/s
Versus
THE STATE OF BIHAR
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Anurag Saurav, Advocate
Mr. Abhinav Alok, Advocate
Mr. Priyajeet Pandey, Advocate
Mr. Abhishek Kumar, Advocate
For the State : Mr. Jharkhandi Upadhyay, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL JUDGMENT
Date : 20-12-2023
The counter affidavit filed on behalf of the Deputy
Commissioner, Excise, Patna, Bihar is taken on record.
2. Heard learned counsel for the petitioner and Mr.
Jharkhandi Upadhyay learned A.P.P. for the State.
3. Learned counsel for the petitioner submits that
whenever any case under the Excise Act is instituted, the police and
the excise official in a mechanical manner investigate. It is further
submitted that petitioner is an old lady, aged about 80 years and is a
Doctorate in English and has served as a Professor in English at the
University College of Arts and Commerce, Calcutta University, for
about 18 years prior to her superannuation from service in the year
2007. It is next submitted that the daughter of the petitioner is also a
Doctorate in English from Oxford University and is presently
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
2/10
employed with Oxford University Press at Oxford, United Kingdom
and the son of the petitioner is a Senior Central Government Counsel
and is practicing Advocate of the Hon'ble High Court at Calcutta for
the last 25 years.
4. Learned counsel for the petitioner further submits that
the aforesaid submission has been made only to bring to the notice of
the Court that petitioner is a respectable lady and it cannot be
fathomed that she was indulging in illegal liquor trade. Learned
counsel next draws the attention of the Court to an order dated
19.12.2019
passed in Cr. Misc. No. 84442 of 2019 (Mahesh Yadav
Vs. The State of Bihar) to submit that Mahesh Yadav was arrested in
Complaint Case No. 214(O) of 2019 (CIS Excise No. 1207 of 2019)
registered for the offence under Section 30(a) of the Bihar
Prohibition and Excise Act, 2016 in which the petitioner is also an
accused. It is next submitted that this Court while granting bail to
Mahesh Yadav by order dated 19.12.2019 had recorded "Keeping in
view the provisions of the special enactment i.e. Bihar Prohibition
and Excise Act, 2016, this Court is of the considered view that
petitioner has made out a case for grant of bail. Possibility of false
implication as is so alleged by the petitioner cannot be ruled out.
Also, thus far save and except for naming the petitioner in the F.I.R.,
no evidence corroborative in nature stands recorded by the police.
Also, none has come forward to highlight the possible involvement
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
of the petitioner (Mahesh Yadav) in the crime. On what basis the
Investigating Officer could link the accused to the crime is also not
emanating from the record."
5. Learned counsel thus submits that petitioner in the same
manner has been implicated in the present case. It is further
submitted that the aforesaid complaint case was instituted by the
Excise Officials alleging that 137.85 litres of illicit liquor was
recovered from the Dickey of a car. It is next submitted that
petitioner being owner of the vehicle, which was seized in the
occurrence, came to be implicated. It is further submitted that the
petitioner had sold the said vehicle to a dealer of vehicle, namely,
M/s Bagaria Motors Pvt. Ltd. on 27.10.2017.
6. Learned counsel for the petitioner further submits that
the car was sold to the dealer in exchange for a new Renault Kwid
Car which was registered in the name of the petitioner having
registration no. WB-02-AL9838 and the sale value of the seized
vehicle was duly adjusted by the said dealer against the price of the
new car.
7. Learned counsel next asserts and submits that while
handing over possession of the seized car to the said dealer, the
petitioner had also handed over the duly signed and executed Form
29 and Form 30 as provided under the Motor Vehicles Act, 1988 and
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
the dealer handed over a Delivery Note to the petitioner while taking
possession of the said car.
8. Learned counsel for the petitioner next submits that
when the petitioner came to know that she has been falsely
implicated in the present case on the ground that the seized vehicle
belongs to her, she filed a writ petition before the Hon'ble Calcutta
High Court being WPA No. 9338 of 2023 seeking a declaration that
the petitioner is not the owner of the seized vehicle. It is further
submitted that the Hon'ble Calcutta High Court by order dated
19.04.2023 (Annexure-14 to the quashing application) held that the
petitioner is entitled to a declaration that she has ceased to be a
registered owner of the said vehicle on and from 27.10.2017 and
further directed that no coercive steps be taken against the petitioner
in connection with any violation that may have occurred in respect of
the said vehicle on and from 27.10.2017.
9. Learned counsel for the petitioner thus submits that this
shows the face of the administration of Bihar that how innocent
people are being implicated in the name of the Excise Law.
10. Learned counsel for the petitioner submits that the
police and the excise officials in their zeal to implicate people
without properly investigating the case do not realize the trauma a
citizen has to face when he or she is implicated in a false criminal
case.
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
11. Learned counsel further submits that there is no
mechanism in the Code of Criminal Procedure to compensate an
accused and the advantage of the same is being taken by the officials
especially of the excise department. It is next submitted that the
officials while investigating the cases relating to the Excise Law are
preparing case diary and the investigation report sitting in their
official chamber without even making any endeavour to investigate
the case properly. Learned counsel, thus, submits that the ordeal of a
lady, aged about 80 years, being implicated in a criminal case can
well be imagined but then the officials of the State of Bihar while
dealing with offence relating to liquor are oblivious of this fact.
12. Learned counsel for the petitioner submits that it
appears that the police and the excise officials are oblivious of the
Excise Law or have not read the law in its correct perspective.
Learned counsel further submits that initially when the Excise Law
was enacted, the presumption of committing an offence under the
Excise Law was against the accused person but the Legislature
realizing the rigours of the law amended the Excise Law by Bihar
Prohibition and Excise (Amendment) Act, 2018 and the same was
notified and made effective from 30.07.2018 and was made
applicable to all pending cases, as Section 98 of the Prohibition Act
contains repeal and saving clause which provides that anything done
or any action taken or any proceeding pending before any officer,
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
authority or court including proceeding by way of investigation, shall
be deemed to have been done or taken under the corresponding
provision of this Act and any proceeding pending before the earlier
Act on the commencement of the Prohibition Act shall be deemed to
be a proceeding pending before it as per this Act and shall be
continued to be dealt with accordingly. Further, mandated that all
references in any enactment to any of the provision of the Act so
repealed shall be construed as references to the corresponding
provisions of this Act.
13. Learned counsel thus submits that in sum and
substance the pending proceedings under the Act was saved as per
Section 98 of the Prohibition Act. It is further submitted that
amended Section 32 of the Prohibition Act, which corresponds to
Section 48 of the repealed Excise Act, 2015, has done away with the
concept of deemed offender and presumption of guilt against the
accused person.
14. Learned counsel thus submits that when presumption
of guilt and concept of deemed offender has been done away with
coming into force of the Prohibition and Excise (Amendment) Act,
2018 w.e.f. 30.07.2018 then where was the occasion for the excise
official who investigated the case to presume that the petitioner being
owner of the case is a deemed offender, rather the excise official
ought to have investigated the case in its correct perspective to arrive
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
at a conclusion with regard to the involvement of the petitioner in the
offence.
15. Learned counsel for the petitioner submits that in
compliance of the order of this Court dated 18.10.2023, the
Superintendent of Police, Buxar had filed a counter affidavit and
draws the attention of the Court to para 36 of the counter affidavit
and submits that a stand was taken by the Superintendent of Police,
Buxar that the present application is not maintainable in view of the
bar under Section 76(2) of the Excise Act as an offence is made out,
on the ground that Section 32 of the Act deals with presumption with
regard to the commission of an offence and the presumption is that
the owner of the vehicle is also involved unless proved otherwise. It
was thus pleaded that for proving it otherwise at the stage of the trial,
but for the present, as prima facie, an offence is made out under the
Act, the bar under Section 76(2) of the Act shall apply to the arrest of
any person on an accusation of having committed an offence under
the Act and for that proposition relied on an order of this Court dated
02.06.2021 in Cr. Misc. No. 10240 of 2021 (Birendar Choudhari Vs.
The State of Bihar) (Annexure-O. P/C to the counter affidavit).
16. Learned counsel thus submits that this reflects the
mind set of the police officials while dealing with the Excise Law. It
appears that they implicate innocent person without understanding
the law. It is further submitted that the present complaint case was
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
instituted on 06.11.2019 and the Bihar Prohibition and Excise
(Amendment) Act, 2018 was notified and made effective from
30.07.2018 and was made applicable to all pending cases and the
amended Section 32 of the Prohibition Act was done away with the
concept of deemed offender and presumption of guilt against the
accused person.
17. Learned counsel thus submits that when the Excise
(Amendment) Act, 2018 was made effective from 30.07.2018, as
such, the presumption of guilt and concept of deemed offender could
not have been applied in the present case which was instituted in the
year 2019.
18. Learned counsel reiterates his submission and submits
that the Superintendent of Police, Buxar should be strictured for
filing an affidavit before this Court without knowing the law in its
correct perspective. The Court refrains from entertaining this
submission of the learned counsel for the petitioner in the present
case, leaving it open to consider such an issue if it comes to the
notice of the Court later in some different case.
19. Mr. Jharkhandi Upadhyay, learned A.P.P. for the State
vehemently opposes the submissions of the learned counsel for the
petitioner but is not in a position to rebut the submissions of the
learned counsel for the petitioner that the concept of deemed offender
and presumption of guilt has been done away with and the
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
submissions made by the learned counsel for the petitioner as
recorded hereinabove.
20. Learned A.P.P. also submits that in compliance of the
order dated 04.12.2023 a counter affidavit has also been filed on
behalf of the Deputy Commissioner, Excise, Patna, Bihar and in the
counter affidavit at para 11 it has been pleaded that vide letter no.
7661 dated 06.12.2023, Excise Superintendent, Buxar has been
instructed to show cause Sanjay Kumar Priyadarsi, Excise Sub-
Inspector, Buxar (I.O. in the present case) and seek clarification on
this issue and on the basis of such clarification, the department will
proceed and take action accordingly.
21. The Court is satisfied with what has been pleaded in
para 11 of the counter affidavit filed on behalf of the Deputy
Commissioner, Excise, Patna, Bihar but then the issue which remains
to be brought to the notice of the official of the police and the excise
department is that the concept of deemed offender and presumption
of guilt against the accused has been done away with and if any
allegation is alleged against an accused with respect to an offence
relating to the Excise Law in that event the allegations are to be
investigated first, had the I.O. of the case investigated the present
case in its correct perspective the order of the Hon'ble Calcutta High
Court would have been brought to his notice and the matter would
have ended but then as recorded hereinabove the authorities in their
Patna High Court CR. MISC. No.58959 of 2023 dt.20-12-2023
zeal to prove their merit with respect to the excise cases are at times
acting in a manner which is uncalled for and definitely does not
reflect good impression about the State.
22. Considering the submissions made by the learned
counsel for the petitioner and taking into account the submissions
recorded hereinabove, the order dated 09.03.2022 passed by the
learned Special Judge, Exclusive Excise Special Court No. II, Buxar,
whereby cognizance of the offence under Section 30(a) of the Bihar
Prohibition and Excise (Amendment) Act, 2018 has been taken
against the petitioner, is hereby quashed.
23. Accordingly, the present application is allowed.
24. Let a copy of this order be sent to the Chief Secretary,
Government of Bihar and the Director General of Police, Bihar for
their perusal.
25. The Court expects that what has been pleaded in the
counter affidavit of the Deputy Commissioner, Excise, Patna, Bihar
at para 11 of his counter affidavit shall be taken to its logical
conclusion.
(Satyavrat Verma, J)
Kundan
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 20.12.2023
Transmission Date 20.12.2023
