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2023 DIGILAW 11 (PAT)

Hira Kumar Singh v. State of Bihar

2023-01-03

CHANDRA SHEKHAR JHA

body2023
Chandra Shekhar Jha, J. – Heard, Mr. Pramod Kumar Singh, learned counsel appearing on behalf of the petitioner and Mr. Anil Kumar Sinha GA-1, learned counsel appearing on behalf of the State as well as Mr. Vikas Kumar SC-1, learned counsel for the respondent. 2. This present writ application is being filed for following reliefs under Articles 226 and 227 of the Constitution of India: – (i) For quashing of Gaighat (Benibad O.P.) P.S. Case No. 20 of 2017 dated 10.02.2017 registered for offences under Sections 420, 34 of the Indian Penal Code and under Section 35(c) of Bihar Prohibition and Excise Act, 2016 (Contained in Annexure-5 to the writ application) (ii) For restraining Respondents from interfering in the trade of the petitioner in the garb of regulating the business in exercise of power conferred under Bihar Excise Act, 2016 (hereinafter referred to as ‘the Act’). (iii) For any other relief (s) for which the petitioner found entitled too. 3. As gathered from the fact of this case, it appears that petitioner has obtained distributorship of products manufactured by M/s D.D. Food Products, Nagloi, Najafgarh Road, New Delhi through M/s Smart India Marketing in the year 2016 as it is appearing from Annexure- 1 of the writ petition, running his office at Anand Nagar, Gulzarbagh, Patna, having marketing right for entire State of Bihar. 4. It appears that M/s D.D. Food Product manufactures, produces different products, including soft non-alcoholic beverage, where manufacturing products were made available after complying with legal formalities duly approved by Food Safety Regulators, where manufacturer M/s D. D. Food Products obtained food safety license number 1331300700037. It also appears that M/s Smart India Marketing, before starting its marketing in Bihar got examined the products from the officials of Excise Department i.e. from Excise Chemist Inspector, Bihar, where on chemical analysis product in issue found non-alcholic by Chemist of Excise Department vide Memo No. 4409 dated 29.12.2016, as forwarded its chemical analyst report to Sub- Inspector of Excise, as per Annexure-2. 5. After making all legal formalities in this connection, the petitioner obtained 200 cases of non-alcoholic beverage from Smart India Marketing on payment of Rs. 1,80,000/- on 30.12.2016 and sent the consignment from Patna to his shop at Darbhanga for the purpose of distribution to various retail shops in the district of Darbhanga. 5. After making all legal formalities in this connection, the petitioner obtained 200 cases of non-alcoholic beverage from Smart India Marketing on payment of Rs. 1,80,000/- on 30.12.2016 and sent the consignment from Patna to his shop at Darbhanga for the purpose of distribution to various retail shops in the district of Darbhanga. But while the goods were in transition, the truck carrying goods was intercepted by the police officials of Gaighat (Benibad O.P) on suspicion in the night of 04.01.2017/05.01.2017 and for the same a Sanha No. 64/17 dated 05.01.2017 was lodged. The sample was send to Chemist Investigator, Patna, where report dated 12.01.2017 was made available suggesting that said fruit juice bear having content of ethyl alcohol only 0.4% but ignoring all such chemical analysis and settled principles, police lodged FIR, which has been registered as Gaighat (Bandipur O.P) P.S. Case No. 20 of 2017 dated 10.02.2017 under Sections 420, 34 of the Indian Penal Code and under Section 35(C) of the Bihar Prohibition and Excise Act, 2016 saying that petitioner has been selling King Farmer Premium Super Strong Fun Ship Beer in the market and claiming the same to be real beer. 6. The petitioner has annexed a report which is annexed as Annexure-6 in the present application in respect of chemical examination of certain samples of Chemist Analyst, Patna, of suspected alcoholic fluid marketed by the petitioner, in which approximately 0.4 per cent ethyl alcohol was noticed. 7. Learned counsel submits that the respondents have imposed complete prohibition on sale, possession or consumption of liquor w.e.f. 05.04.2016 in order to effectively enforce the policy of zero tolerance towards enforcement/implementation of the Act. The aim and object of the Act would clearly show that the Legislature desired to enforce, implement and promote complete prohibition of liquor and intoxicants in the territory of the State of Bihar. The definition of the word “alcohol” in Section 2(2) and the word “alcoholic” in Section 2(3) would show that alcoholic means a solution or mixture containing alcohol and being of any strength and purity. The same goes to show that quantity of alcohol to any miniscule extent is prohibited under Section 13 of the Act and is punishable under Section 35(C) of the Act. Therefore, according to learned counsel, the ingredients of the offence are clearly made out. The same goes to show that quantity of alcohol to any miniscule extent is prohibited under Section 13 of the Act and is punishable under Section 35(C) of the Act. Therefore, according to learned counsel, the ingredients of the offence are clearly made out. Hence, the petitioner deserve no relief from this Court in exercise of this extra ordinary jurisdiction. 8. Learned counsel submits that in view of the stringent provisions of the Act regarding complete ban on use of any quantity of alcohol even the soft drink or any beverage which grows alcoholic in due course comes within the perview of the Act. He further submits that it depends upon the quantity consumed and not the quantity available in the liquor to ascertain whether it was an intoxicant. 9. Learned counsel appearing on behalf of the State submitted that despite of sufficient time, no counter affidavit was filed by the respondent in terms of direction of this Court vide order dated 01.08.2017. 10. According to First Information Report lodged by the S.H.O, Gaighat (Benibad O.P.), Muzaffarpur, during the goods were in transition, the truck was intercepted by the police officials on the basis of suspicion. During the investigation, 12 bottles of fruit juice beer having brand name King Farmer Premium Super Strong Fun Ship Beer were seized by the police officials. On the same day i.e. on 04.02.2017, a seizure list was prepared and, simultaneously, for chemical examination, samples were also taken out of the seized beverage. The chemical examination of the sample was done by the Chemical Analyst, Patna of the Excise Department and the sample was found containing 0.4 per cent ethyl alcohol. 11. Section 13 of the Act is being reproduced below: – “13. Prohibition of liquor or intoxicants. – No person shall manufacture, bottle, distribute, transport, collect, store, possess, purchase, sell or consume any intoxicant or liquor: Provided that the State Government may, by notification, allow renewal of the existing licensees for manufacturing, blending, compounding, bottling, storage, import and export of any liquor or intoxicant subject to the provisions of this Act; Provided also that the State Government may, by notification, allow any state owned company to undertake such activities as may be required under the Act. Explanation. – The words “Existing Licensee”mean persons, firms etc who are holding a valid license on the day of this Act coming into force.” 12. Explanation. – The words “Existing Licensee”mean persons, firms etc who are holding a valid license on the day of this Act coming into force.” 12. Sections 30(a) and 30(g) which have been relied by the learned counsel for the parties are being reproduced below: – “30(a) manufactures, possesses, buys, sells, distributes, collects, bottles, imports, exports, transports or removes any intoxicant or liquor; or 30(g) manufactures, possesses, sells, distributes, bottles, imports, exports, transports or removes, any preparation or ingredient made with or without the use of any intoxicant or liquor, which can serve as an alcohol or a substitute for alcohol and is used or likely to be used or consumed for the purposes of getting intoxicated, shall be punishable with imprisonment for a term not less than ten years but which may extend to imprisonment for life and with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees. Explanation. – “Possession”here means the possession by any family or member of that family and includes the knowledge of possession where any member of a family or the family itself know that such possession is illegal, whether it is in his or her own possession or with some other member of the family.” 13. Explanation. – “Possession”here means the possession by any family or member of that family and includes the knowledge of possession where any member of a family or the family itself know that such possession is illegal, whether it is in his or her own possession or with some other member of the family.” 13. The words “intoxicant” and “liquor” have been defined in Section 2(40) and 2(44) of the Act as follows: – “2(40) “intoxicant” means---- (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 purpose of this Act, or (vi) intoxicating drug, or (vii) medicinal preparation as defined under edicinal 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 a substitute for alcohol and is used or consumed for the purposes of getting intoxicated.” 2(44) “Liquor” means country or traditional liquor, Indian Made Foreign Liquor, foreign liquor or any preparation or ingredient, whether solid, semi solid, liquid, semi liquid or gaseous, either made locally or otherwise, that may serve as an alcohol or a substitute for alcohol and is used or consumed for the purposes of getting intoxicated;” 14. A bare perusal of the aforesaid provision would make it abundantly clear that to attract the penal provisions of Section 30(a) or 30(g) of the Act, the substance must be of intoxicant or liquor which can serve as an alcohol or for a substitute of alcohol and is used or likely to be used or consumed for the purposes of getting intoxicated. There is no dispute that the State Legislature has competency to make law only in respect of portable liquors and not in respect of non-portable liquors. 15. Section 2(2) of the Act defines the word “alcohol” as follows: – “2(2) “Alcohol” means Ethyl Alcohol having a colorless volatile flammable organic liquid which is produced by a natural or yeast fermentation of sugars and is intoxicating constituent of wine, beer, spirits, and other alcoholic beverages, and is also used as an industrial solvent and as fuel;” 16. 15. Section 2(2) of the Act defines the word “alcohol” as follows: – “2(2) “Alcohol” means Ethyl Alcohol having a colorless volatile flammable organic liquid which is produced by a natural or yeast fermentation of sugars and is intoxicating constituent of wine, beer, spirits, and other alcoholic beverages, and is also used as an industrial solvent and as fuel;” 16. 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;” 17. 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 alcohol in conformity with the BIS standards which may be intoxicating and is fit for human consumption;” 18. 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;” 19. Learned counsel for the petitioner has produced a copy of the BIS specification of carbonated beverages non-alcoholic Beer. The same is not disputed by the respondents. Hence, is being reproduced below: – Indian Standard CARBONATED BEVERAGES NON- ALCOHOLIC BEER – SPECIFICATION 1 SCOPE This standard prescribes the requirements and methods of sampling and test for non-alcholic beer. 2 REFERENCES The Indian Standards listed in Annex A are necessary adjuncts to this standard 3 TERMINOLOGY 3.1 Non-Alcoholic Beer It is a beverage containing less than 0.5 per cent ehtyl alcohol by volume. 4 REQUIREMENTS 4.1 General Non-Alcoholic beer shall be the product of alcoholic fermentation or otherwise of a mash in potable water of malted barley and hops or conentrate of hops with or without the addition of other malted or unmalted cereals or other carbohydrate preparations. 4.2 Freedom from Harmful Ingredients Non-Alcoholic beer shall be free from any ingredients injurious to health. 4.3 Preservaties Non-alcoholic beer may contain preservatives permitted under the preventioni of Food Adulteration Rules, 1954. 4.4 Artificial Sweetners Non-alcoholic beer shall be free from artificial sweetening agents except saccharin. Amount of saccharin in the product shall not exceed by 100 mg/kg when determined by the method given in Annex A of IS 2346:1973. 4.5 Freedom from Added Colouring Matter Non-alcoholic beer shall be free from any articifial colour except caramel. 4.4 Artificial Sweetners Non-alcoholic beer shall be free from artificial sweetening agents except saccharin. Amount of saccharin in the product shall not exceed by 100 mg/kg when determined by the method given in Annex A of IS 2346:1973. 4.5 Freedom from Added Colouring Matter Non-alcoholic beer shall be free from any articifial colour except caramel. 4.6 Freedom from Added Alcohol Non-alcoholic beer shall be free from any added alcohol. 4.7 Carbon Dioxide Content Non-alcoholic beer shall be charged with carbon dioxide before bottling. 4.8 Pateurisation Bottled non-alcoholic beer shall be effectively pasteurized, if required. 4.9 Organoleptic Requirements Non-alcoholic beer shall be clear and have the charateristic colour, taste, bouquet and foam of its type. 4.10 Hygienic Conditions Non-alcoholic beer shall be manufactured ini prermises built and maintained under hygienic conditions in accordance with IS 5837 : 1970 4.11 The material shall also conform to the requirements given in Table 1. SI No. Characteristic Requirement Method of Test, Ref to (I) Ethyl alcohol content, percent by volume at 15/15C, Max 0.5 IS 3752 : 1988 (ii) pH 3.5 to 4.5 IS 3865 : 1978 (iii) Carbon dioxide, v/v 2.5 to 3.0 IS 2346 : 1973 (iv) Resideu 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) California count, in 100 ml 0 IS 5401 : 1969 (xi) Yeast and mould count 2 IS 5403 : 1969 20. It is well settled that the 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 nonalcoholic 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. 21. Only definition under Section 2(3) of the Act was enough to fulfill the aforesaid desire. 21. 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-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. 22. In the present case, only ethyl alcohol of 0.4 per cent has been found by the expert as per Annexure-6. 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 to the standard fixed by BIS. Thus, in my consideration, the petitioner was selling non-alcoholic substance, according to the BIS standard. Hence, it cannot be said that the petitioner has committed any offence under the Act or the FIR discloses any offence much less any cognizable offence said to be committed by the petitioner. 23. The Law is well 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. 24. Accordingly, as to conclude issue, in my view, for the aforesaid discussion, the FIR of Gaighat (Benibad O.P.) P.S. Case No. 20 of 2017 is fit to be quashed and, accordingly, the same stands quashed. 25. Accordingly, the writ application stands allowed.