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2014 DIGILAW 207 (CAL)

Basabi Raichoudhary v. State of West Bengal

2014-03-11

ARUN MISHRA, JOYMALYA BAGCHI

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Judgment : Joymalya Bagchi, J. This public interest litigation was filed in the wake of unfortunate deaths of 65 persons and 150 persons falling ill after consuming illicit liquor from an illegal outlet in Sangrampur in the District of South 24-Parganas on 14th December, 2011. It has also been pleaded that apart from the aforesaid incident, there have been series of such incidents in the State of West Bengal resulting innumerable persons falling ill or dying due to consumption of illicit liquor. Accordingly, prayer has been made for investigation by CBI into the aforesaid incident; for incorporation of appropriate provisions in Bengal Excise Act for exemplary punishment of culprits; formation of guidelines for compensation in such 2incidents; fixing responsibility of government officials directly or indirectly involved with the alleged inciden; demolition of hooch outlets in the State of West Bengal within a particular time frame and other incidental reliefs. Affidavit-in-opposition has been filed on behalf of the respondents wherein it has been stated that the State government has announced compensation of Rs. 2,00,000/- (Rupees Two Lakhs) to the family members of the victims who have died in the aforesaid hooch tragedy. State had declared such incident as "disaster" within the meaning of Disaster Management Act, 2005. It has also been pleaded that steps have been taken to amend the provisions of Bengal Excise Act, 1909. Status report has been filed on behalf of the State respondents with regard to the criminal case being Morgahut P.S. Case No. 265/2011 dated 14.12.2011 under section 272/273/328/304/328/304/34 IPC and under section 46A/46B of Bengal Excise Act, 2009 registered in respect of the aforesaid incident wherefrom it appears that the accused persons have been arrested and put on trial in the instant case. Report has also been filed by the Excise Commissioner, West Bengal dated 29.03.2012 wherefrom it appears that raids were undertaken in the area in question for demolition of illegal hooch dens, distillation spots, etc. In view of his failure to prevent such tragedy, Officer-in-Charge, Diamond Harbour Excise Circle has been placed under suspension in contemplation of disciplinary proceeding. Report has also been filed by the Excise Commissioner, West Bengal dated 29.03.2012 wherefrom it appears that raids were undertaken in the area in question for demolition of illegal hooch dens, distillation spots, etc. In view of his failure to prevent such tragedy, Officer-in-Charge, Diamond Harbour Excise Circle has been placed under suspension in contemplation of disciplinary proceeding. On 23.05.2013, further report was filed on behalf of the Excise Commissioner, West Bengal stating the following amendments have been made to the existing law and stringent provisions/penalties have been incorporated to curtail illicit production and sale of illicit liquor: (a) In order to bring to book the manufacture and trading of illicit liquor, penal provisions of the Bengal Excise Act, 1909 has been made more stringent by an amendment of the Act vide Notification No. 1137-L dated 02.08.2012. (b) All excise crime, concerning illicit liquor have been made non-bailable. (c) A new section, namely, 46AA has been introduced, which has prescribed punishment for mixing of any substance in liquor or any intoxicating drug that is likely to cause disability or death to human beings are now punishable with imprisonment for life or imprisonment of either of the description for a term which may extended to ten years and with fine. (d) The period of imprisonment, for offences, punishable u/s 46,46A and certain other penal provisions have been increased. (e) Surveillance in the licensed Excise shops has been strengthened for preventing unlawful activities and composition money has been raised upto 3 lacs from its existing 50000/- to dissociate licensed vendors from excise crimes. The entire excise administration of the State has also been revamped for prevention and effective control of manufacture, sale and consumption of illicit liquor:- (a) Area of operation per excise officer/staff has been tightened and jurisdiction of officers have been re-organized, keeping parity with administrative jurisdiction to raise performance quotient. (b) Area of an excise circle has been made coterminus with the jurisdiction of two police stations on an average. (c) The jurisdiction of a range has been made coterminus with jurisdiction of a Sub-division. (d) Five new excise districts have been created, splitting erstwhile 22 excise districts. (e) Eight excise preventive divisions have been created in place of erstwhile three preventive divisions in the State. (f) 462 no. of new posts of excise constables have been created. (g) 137 posts of Assistant Sub-Inspector of Excise have been created. (d) Five new excise districts have been created, splitting erstwhile 22 excise districts. (e) Eight excise preventive divisions have been created in place of erstwhile three preventive divisions in the State. (f) 462 no. of new posts of excise constables have been created. (g) 137 posts of Assistant Sub-Inspector of Excise have been created. (h) 88 new posts of Sub-Inspector of Excise has been created. (i) 33 new posts in the officers of the West Bengal Excise Service (including 3 new posts of Additional Excise Commissioner) have been created. (j) Rules regarding recruitment of excise constables have been changed and the Police Recruitment Board has been entrusted to conduct recruitment process. Recruitment rules of Assistant Sub-Inspectors of Excise has also been changed to expedite recruitment process. Concerned Government Notifications are 1229-Ex dated 12.12.12 and 9-Ex dated 01.01.2013 respectively. (k) To bridge demand supply gap, new country spirit bottling plants have been issued licence to cater increased market demand. (l) To smoothen supply chain of raw materials, six no. of distilleries have been issued 'Letter of Intent' to construct distillery set up. (m) Public awareness campaign in the form of leaflets, wall-postering, miking was undertaken as anti illicit liquor drive to restrain people from consumption, sale, manufacturer of illicit liquor. Some audio-visual programmers have been shown through different broadcasting devices. (n) The Superintendent of Excise, South 24-Parganas intensified preventive raids in co-ordination with police authorities to eradicate illicit distillation spot and to smash selling dens. These activities were replicated to all the districts of West Bengal to prevent export, import and transport of illicit liquor." Learned counsel appearing for the petitioners submitted that in view of the enormity of disaster resulting in loss of innumerable lives the instant case ought to be transfer to CBI for further investigation. He submitted that the criminal case is being conducted in a perfunctory manner and principal accused has been released. He further submitted that there is no embargo to further investigation by CBI in spite of charge sheet being filed. He also submitted that the State be directed to take appropriate steps in order to prevent reoccurrence of such gargantuan tragedy. Learned Advocate General appearing for the State of West Bengal submitted that the criminal case is being pursued with all seriousness. The accused persons are facing trial and recording of evidence is in progress. He also submitted that the State be directed to take appropriate steps in order to prevent reoccurrence of such gargantuan tragedy. Learned Advocate General appearing for the State of West Bengal submitted that the criminal case is being pursued with all seriousness. The accused persons are facing trial and recording of evidence is in progress. He submitted that preventive measures as indicated in the reports dated 29.03.2012 and 23.05.2013 have been undertaken. He assured this Court that such measures would be continued and vigil would be maintained to crack organised crime rackets and prevent such incidents in the future. The gravity of the human tragedy in the instant case cannot but be under scored. Innumerable persons lost their lives due to rampant illegal sale and consumption of illicit liquor in the District of South 24-Parganas. There is no doubt that such organized crime activities could not have flourished unless there was gross indifference and/or negligence on the part of the law enforcement agencies in discharging their duties of maintaining law and order and prevention of crime. In this backdrop, steps taken by the State Government in the matter of investigation of the aforesaid crime and other preventive steps undertaken by them are to be examined. In Chandran Alias Manichan Alias Maniyan & Ors. Vs. State of Kerala, (2011) 5 SCC 161 the Apex Court while dealing with a similar case of hooch tragedy in the State of Kerala highlighted the need for the government of the day to wake up to the menace of unlawful sale and consumption of illicit liquor resulting in loss of innumerable lives and directed the State to overhaul its system and undertake positive steps to save the poor man from such ghastly disasters. The Apex Court held as follows : "We hope and expect that the Kerala Government takes up this issue and takes definite steps for overhauling the system. We are worried about the rotten system that allowed such trade not only to continue, but to thrive. It will be, therefore, for the administrators and the Government to take positive steps, firstly, to overhaul the system by weeding out the corrupts by punishing those who are responsible for the whole system looking sideways. We do not know as to whether such an exercise is taken up, but if it has not been taken up the government is directed to take such steps. We do not know as to whether such an exercise is taken up, but if it has not been taken up the government is directed to take such steps. We do not think that the things would come under control unless such exercise is taken, so as to save the poor man from such ghastly disaster." We find from the status report filed on behalf of the State and the submissions of the parties that investigation in the instant case is complete and the trial is in progress. Evidence is being recorded against the accused persons and the case is at a matured stage. It has been vehemently argued that the principal accused has been released by the trial Court. No such order has been placed before us during arguments. Even if it is so, it is open to the aggrieved persons to challenge such order in accordance with law. Moreover, the aggrieved persons being victims as defined under section 2(wa) of the Code of Criminal Procedure are entitled to participate in the aforesaid trial and supplement efforts of the State prosecuting agency. The State is directed to prosecute the offenders in this case vigorously and ensure their prompt punishment in accordance with law. However, bearing in mind the matured stage of the trial and the existence of the remedies under the ordinary law to take care of the concerns of the aggrieved persons, direction for further investigation by CBI is not warranted in the facts of the case. Secondly, with regard to the issue regarding steps being taken against excise personnel in failing to prevent the aforesaid tragedy, we find from the report dated 29.03.2012 submitted by the Excise Commissioner that Officer-in-Charge of concerned Excise Circle has been suspended in contemplation of disciplinary enquiry. Let necessary steps in accordance with law for initiation of disciplinary proceeding against delinquent personnel be undertaken and the same be taken to its logical conclusion, if not already done. Finally, with regard to remedial and/or preventive measures, we find from the reports dated 29.03.2012 and 23.05.2013, that certain measures have been undertaken by the State and others have been proposed to be implemented. Amendments have been made to Bengal Excise Act, 1909 and stringent punishments have been prescribed. Steps have been taken to revamp the Excise Department and regular raids have been undertaken and hooch dens and/or distillation centres have been demolished. Amendments have been made to Bengal Excise Act, 1909 and stringent punishments have been prescribed. Steps have been taken to revamp the Excise Department and regular raids have been undertaken and hooch dens and/or distillation centres have been demolished. Steps for filling of vacancies in the Excise Department has been initiated. Public awareness campaigns have been undertaken to spread awareness amongst people against the ill effects of consumption of illicit liquor. In addition to the aforesaid steps, we direct the following remedial/preventive measures be undertaken by the State :- (a) Regular surveillance, gathering of intelligence be undertaken by officials of Excise Department to locate and identify covert criminal activities in illegal manufacture, trade and consumption of illicit liquor; (b) Scheme for giving awards to individuals/sources who give genuine information/intelligence about such illegal and criminal activities be formulated and implemented; (c) Regular raids be conducted at places where such illicit activities are carried on. Hooch dens/distillation centres be forthwith demolished and the offenders be booked and punished promptly; (d) Vacancies in the Excise Department be filled up promptly and the recruitment process referred to in report dated 23.05.2013 be completed at an early date, if not already done; (e) Vigorous public awareness campaigns highlighting the ill effects of consumption of illicit liquor and alcoholism be regularly undertaken through social awareness programmes, advertisements etc. particularly amongst weaker and illiterate sections of society; (f) Detoxification/de addiction centres be set up in every primary health centre in rural and urban areas. We hope and trust that by resorting to the aforesaid preventive measures, we would be able to avoid similar tragedies in the future. With the aforesaid directions, the writ petition is disposed of.