Patna High Court
Prabhu Prasad vs The State Of Bihar, Through The Director ... on 9 September, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.2396 of 2017
Arising Out of PS. Case No.-44 Year-2017 Thana- NAUTAN District- West Champaran
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1. Prabhu Prasad Son of Dinanath Prasad R/o vill - Mangalpur Gudariya, P.S.-
Nautan, Distt.- West Champaran
2. Ram Lagan Yadav @ Lagan Yadav Son of Late Narayan Yadav. R/o vill -
Mangalpur Gudariya, P.S.- Nautan, Distt.- West Champaran
... ... Petitioner/s
Versus
1. The State Of Bihar, Through The Director General Of Police, Bihar, Patna
2. The Principal Secretary, prohibition, Excise and Registration Department,
Bihar, Patna.
3. The Deputy Inspector General of Police, Tirhut Division, Muzaffarpur.
4. The Excise Commissioner, Bihar, Patna.
5. The Superintendent of Police West Champaran, Bettiah.
6. The Superintending of Excise West Champaran, Bettiah.
7. The Officer In-Charge, Nautan Police Station, West Champaran, Bettiah.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Arvind Kumar Tewary, Advocate
Ms. Akanksha Verma, Advocate
For the Respondent/s : Mr. Vivek Prasad G.P.-7
Mr. Sanjay Kumar, AC to GP-7
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CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
Date : 09-09-2025
Heard both sides.
2. In the instant writ application, petitioners seek
following relief(s):-
(i) For issuance of an
appropriate writ, order or direction for
quashing of First Information Report of
Nautan Police Station Case No. 44 of
2017 dated 10.02.2017 instituted for the
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
2/11
alleged offences punishable under
Section 35(c) of the Bihar Excise and
Prohibition Act, 2016.
(ii) For issuance of an
appropriate writ, order or direction
commanding and directing the
respondents to unseal the premises of
the petitioner which has been sealed
pursuant to institution of Nautan Police
Station Case No. 44 of 2017 dated
10.02.2017
and restore its possession
with all the articles stored therein.
(iii) For restraining the
respondent from taking coercive actions
against the petitioner in the garb of
regulating the business in exercise of
power conferred under Bihar
Prohibition and Excise Act, 2016 (in
short of the Act).
(iv) For any other relief
or reliefs for which the petitioner found
entitled too.
3. Briefly stated facts of the present case is that
on 10.02.2017 as per direction of Excise Superintendent,
Bettiah, informant alongwith other Excise officials conducted
raid in a kiosk like shop situated on the west side near Patanjali
shop in Nautan market and 150 bottles (100 ml each) which
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
seems like beer, were seized. It is alleged that during the course
of raid, petitioner no. 2 was apprehended at the place of
occurrence and he disclosed that petitioner no. 1 used to supply
the alleged drink and petitioner no. 2 used to sell it.
4. Learned counsel for the petitioners has limited
grievance towards quashing of FIR. Learned counsel for the
petitioners has relied upon a similar and identical decision of
this Hon'ble Court rendered in the case of M/S Smart India
Marketing Proprietorship and Anr. Vs State of Bihar and Ors.
(Criminal Writ Jurisdiction Case No. 627 of 2017 ) reported in
2018 (3) PLJR 165 and the said decision has been affirmed by
the Hon'ble Supreme Court in S.L.P. No(s). 600 of 2018
(arising out of Cr.WJC. No. 627 of 2017) ( State of Bihar and
Ors. Vs. M/S Smart India Marketing Proprietorship and Anr.).
5. Learned counsel for the petitioners further
submits that the alleged seized product namely WFM 10,000
super strong is the duly registered brand under the Trade Mark
Act, 1999. He further submits that the WFM Food Products, has
got valid licence form the Deputy Director (F & VO), N.R.
Ministry of Food Processing Industries, New Delhi since 1998.
He further submits that even before the launch of said products
by the company, the beverages were tested and found to be non-
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
alcoholic and the Government also got it tested and sample was
sent by the Sub-Inspector Excise and vide report dated
14.02.2017 (Annexure 2) the product was found to be non-
alcoholic. He further submits that the products of the WFM
Food Products are marketed by Sri Nath Traders which
appointed the firm M/S Siddhi Enterprises, Patna, as Marketer
for the entire State of Bihar of the WFM products, including the
beverages namely Super Strong 10,000/ thousand volt, kalahon
golden 5 lacs, Kingfermer. He further submits that M/S Siddhi
Enterprises is a registered Firm which has been duly issued
certificate of Registration under section 92 of the Bihar Value
added Tax Act 2005 and it has got license issued by the
Department of Health and Family Welfare Govt. of Bihar under
Food State Safety Authority under FSS Act 2006. He further
submits that petitioner no.1 has been appointed by M/S Siddhi
Enterprises G.P. Complex Patna Ad retailer for Bettiah and the
petitioner no. 1 is marketing the said product in the name of
M/S Priya Trader at Bettiah for which he has got VAT, Licence
by the competent authority. The beverages were seized by the
Excise Officials by treating the same as alcoholic drink merely
on suspicion. He further submits that the seized article were
examined and tested by the Excise Chemical analyst and after
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
chemical test only 0.2% Ethyl alcoholic content was found
which cannot be treated as alcoholic drink and the seized article
were non alcoholic and merely on the basis of suspicion that
beverages are alcoholic, FIR has been registered against the
petitioners. He further submits that M/S Sidhi Enterprises the
principal distributor in Bihar and the Proprietor of the firm
namely Smt. Kumari Punam wrote letter dated 18.01.2017 to the
Excise Commissioner, Bihar to get the products examined at the
Government Laboratory, as the product was non-alcoholic and
the same was duly received on the same day in the office of the
Excise Commissioner, (Annexure 3 to the instant writ
application). He further submits that from different districts of
Bihar the product namely WFM Super Strong 10,000 was seized
by the Excise Officials from retailer and from all the places the
product was sent to the Excise Chemical Analyst, Patna and the
report was sent by the chemical analyst after test in Chemical
Laboratory report sent to the Excise Official and in all such
reports the Ethyl alcohol content was found to be 0.2% v/v to
minimum of 0.4% v/v, (Annexure 4 of the instant writ
application). He further submits that even if the entire
prosecution story is taken into account, the goods of the
petitioners are non alcoholic beverage and it does not fall under
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
the ambit of the Bihar Excise and Prohibition Act. Learned
counsel for the petitioners submits that the facts of the Cr. WJC.
No. 627 of 2017 (M/S Smart India Marketing Proprietorship and
Anr. Vs. The State of Bihar & Ors.) is totally identical with the
present case and in the light of the aforesaid decision, no
offence as alleged in the FIR is made out against the petitioners
and, hence, the FIR is liable to quashed. He further submits that
samples of petitioners' product, which was seized from different
districts, were tested on different dates and the last test was
conducted on 17.02.2017.
6. Learned counsel for the petitioners has
produced BIS specification of carbonated beverages non-
alcoholic beer and the same is not disputed by the learned
counsel for the respondent. Hence, is being reproduce below:-
Indian Standard
CARBONATED BEVERAGES -
NON-ALCOHOLIC BEER - SPECIFICATION
1 SCOPE Amount of saccharin in the
This standard prescribes the product shall not exceed by
requirements and methods of 100 mg/kg when determined
sampling and test for non- by the method given in
alcoholic beer. Annexure A of IS 2346 : 1973.
2 REFERENCES 4.5 Freedom from Added
Colouring Matter
The Indian Standards listed in
Annexure A are necessary Non-alcoholic beer shall be
adjuncts to this standard. free from any artificial colour
except caramel.
3 TERMINOLOGY
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
3.1 Non-Alcoholic Beer 4.6 Freedom from Added
Alcohol
It is a beverage containing less
than 0.5 percent ethyl alcohol Non-alcoholic beer shall be
by volume. free from any added alcohol.
4 REQUIREMENTS 4.7 Carbon Dioxide Content
4.1 General Non-alcoholic beer shall be
charged with carbon dioxide
Non-alcoholic beer shall be the before bottling.
product of alcoholic
fermentation or otherwise of a 4.8 Pasteurisation
mash in potable water of
malted barley and hops or Bottled non-alcoholic beer
concentrate of hops with or shall be effectively
without the addition of other pasteurized, if required.
malted or unmalted cereals or
other carbohydrate 4.9 Organoleptic
preparations. Requirements
Non-alcoholic beer shall be
4.2 Freedom from Harmful clear and have the
Ingredients characteristic colour, taste,
Non-alcoholic beer shall be bouquet and foam of its type.
free from any ingredients
injurious to health. 4.10. Hygienic Conditions
Non-alcoholic beer shall be
4.3 Preservatives manufactured in premises built
Non-alcoholic beer may and maintained under hygienic
contain preservatives permitted conditions in accordance with
under the Prevention of Food IS 5837: 1970
Adulteration Rules, 1954.
4.11 The material shall also
4.4 Artificial Sweetners conform to the requirements
given in Table 1.
Non-alcoholic beer shall be
free from artificial agents
except saccharin.
Sl. No. Characteristic Requirement Method of test,
Ref to
(1) (2) (3) (4)
(i) Ethyl alcohol content, 0.5 IS 3752:1988
percent by volume at 15/15C, Max
(ii) pH 3.5 to 4.5 IS 3865: 1978
(iii) Carbon dioxide,v/v 2.5 to 3.0 IS 2346: 1973
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
(iv) Residue on evaporation, percent(m/v) 5 to 10 IS 3752:1988
(v) Arsenic, mg/kg, Max 0.25 IS 6854:1973
(vi) Lead, mg/kg, Max 0.5 IS 6854:1973
(vii) Copper, mg/kg, Max 1.5 IS 6854:1973
(viii) Iron, mg/kg, Max 0.5 IS 6854:1973
(ix) Total plate count, per ml, Max 50 IS 5402:1969
(x) Co li form count, in 100 ml 0 IS 5401:1969
(xi) Yeast and mould count 2 IS 5403:1969
7. Learned counsel for the State submits that de-
sealing order has been passed by the Co-ordinate Bench of this
Court subject to certain conditions, as contained in Annexure B
of the counter affidavit. No specific averments have been made
by the learned counsel for the State in the counter affidavit with
regard to the test conducted by the Excise Chemical Analyst,
Patna.
8. It is necessary to discuss the relevant Laws
which reads as under:-
9. Section 2(3), Section 2(4) and Section 2(6) of
the Bihar Prohibition and Excise Act reads as under:-
Section 2(3) of the Act defines the word
"alcoholic" as follows:-
"2(3) "alcoholic" means
a solution or mixture containing alcohol
and being of any strength and purity."
Section 2(4) of the Act defines the term
"alcoholic beverage or portable liquor" as follows:-
"2(4) "alcoholic beverage or portable
liquor" means any beverage containing
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
alcohol in conformity with the BIS
standard which may be intoxicating and
is fit for human consumption."
Section 2(6) of the Act defines what is "BIS
Standard" as follows:-
"2(6) "BIS standards"
means standard prescribed by Bureau
of Indian Standards or the standards
prescribed by any other Central
Government authority, constituted
under the relevant Act."
10. It is well settled law that statutory provisions
cannot be read in isolation to gather the aim and object of the
legislature in bringing the Law in force. If the legislature would
have intended to put complete prohibition even on non-alcoholic
beverage as per the standard of BIS, there was no need to
incorporate clarification in the form of definition of the word
"alcoholic beverage or portable liquor" under Section 2(4) of
the Act. Only definition under Section 2(3) of the Act was
enough to fulfill the aforesaid desire.
11. On a careful consideration of the aforesaid
statutory provision, it is evident that what the Act prohibits is
the intoxicant or liquor containing alcohol of any strength and
purity, as per the definition of "alcoholic" under Section 2(3) of
the Act. Simultaneously, it does not prohibit sale etc. of the non-
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
alcoholic substances in conformity with the standard set by the
BIS in view of the definition and clarification contained under
Section 2(4)(6) of the Act.
12. In the present case, ethyl alcohol content is
not more than 0.4%v/v and only 0.2 % v/v to 0.4% v/v has been
found by the chemical analyst as per Annexure-4 series of the
instant writ application. Hence, this Court is concerned only
with alcoholic substance out of the different intoxicants.
Moreover, the Penal provision must be specific with all clarity.
In the present case, the Act specifies that alcoholic beverage or
portable liquors should confirm the standard fixed by BIS. Thus,
in my consideration, the petitioners were selling non-alcoholic
substance, according to the BIS standard. Hence, it cannot be
said that the petitioners have committed any offence under the
Act or the FIR discloses any offence much less any cognizable
offence said to be committed by the petitioners.
13. The law is settled that if the FIR does not
disclose a cognizable offence, it would be fit to be quashed for
the reason that its continuance would amount to an abuse of the
process of the law and would occasion failure of justice.
14. Learned counsel for the respondent has no
reason to dispute the Annexure - 4 series to the instant writ
Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025
application as the same was tested by Excise Chemical Analyst,
Bihar, Patna. The law is well settled that the offence is to be
determined on the date of its commission and if on the date of
seizure, the beverage was not containing any alcoholic
substance, the offence was not committed as per the provisions
of the Act.
15. In the light of the aforesaid facts and
circumstances of the case and discussions made above, First
Information Report of Nautan Police Station Case No. 44 of
2017 is fit to quashed and, accordingly, the same stands
quashed.
16. Accordingly, the writ application stands
allowed.
17. Pending Interlocutory Applications, if any,
stands disposed of.
(Alok Kumar Pandey, J)
alok/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 16.09.2025.
Transmission Date 16.09.2025.
