Govt Officials Love Liquor Ban, For Them It Means Big Money; Poor People Facing Wrath of Bihar Prohibition & Excise Act: Patna HC
While coming down very heavily on the Bihar State Government’s prohibition law, the Patna High Court in a most learned, laudable, landmark, logical and latest oral judgment titled Mukesh Kumar Paswan vs State of Bihar in Civil Writ Jurisdiction Case No.8071 of 2023 that was pronounced as recently as on October 29, 2024 and uploaded on November 13, 2024 has minced just no words to point out that the legislation has “given rise to unauthorized trade of liquor and other contraband items” and has become a tool for government officials to make “big money”. It must be noted that the Single Judge Bench of the Patna High Court comprising of Hon’ble Mr Justice Purnendu Singh who authored this noteworthy judgment minced just no words to hold unambiguously that, “The draconian provisions of the Bihar Prohibition and Excise Act, 2016 have become handy for the police, who are in tandem with the smugglers. Innovative ideas to hoodwink law enforcing agency have evolved to carry and deliver the contraband. Not only the police official, excise official, but also officers of the State Tax department and the transport department love liquor ban, for them it means big money.” It must be noted that the High Court’s observations were in response to a petition by Khagaria resident Mukesh Kumar Paswan who was suspended as Inspector of Bypass Police Station, Patna in November 2020 after a stash of liquor was found in a raid by the State Excise Department. It was also made clear by the Bench that it was the poor people who were facing the wrath of Bihar Prohibition and Excise Act, 2016.
We need to note that the Patna High Court quashed the suspension order against Paswan by terming it an “infringement of natural justice”. The Court also took potshots at the Bihar State Government for being unable to properly implement the Bihar Prohibition and Excise Act, 2016 which is the law that still governs the liquor prohibition in the State. The Bench also annulled the entire departmental proceedings against the petitioner.
To put things in perspective, the Division Bench envisages in para 3 that, “The brief facts of the case are that while the petitioner was posted on the post of Inspector of Police at Bypass Police Station, Patna, a raid was conducted by the Excise Department in the area falling under the jurisdiction of the petitioner’s police station. The petitioner was present during the course of raid leading to recovery of illicit foreign liquor amounting to rupees four lac. The petitioner lodged FIR against accused persons and prepared seizure list. It is alleged that the participation of the petitioner in the sale of illicit liquor along with one chowkidar, namely, Lalu Paswan, cannot be denied as the godown, in which raid was conducted, is only 500 meters from the police station, which is in violation of the direction contained in Letter No. 63 dated 24.11.2020. The petitioner was suspended by the Director General of Police, Bihar vide Letter No. 142 dated 01.02.2021 for the said reason. A memo of charge contained in Memo No. 1723 dated 06.02.2021 was served to the petitioner. Thereafter, Inspector General of Police, Central Range, Patna vide letter contained in Memo no.41 dated 09.02.2021, issued show cause as to why the petitioner be not held guilty for being negligent in implementation of Excise Prohibition Law which is in violation of Rule-3(1) of the Government Official Conduct Rule, 1976, pursuant to which, the petitioner submitted his detailed show cause reply on 19.03.2021 denying all the allegation. The Inquiry Officer after holding inquiry recommended for imposition of major penalty of dismissal of the petitioner. Thereafter, the Disciplinary Authority held the petitioner guilty of the charges and passed Penalty Order contained in Memo No. 233 dated 13.04.2022. Aggrieved by the penalty order, the petitioner has preferred the present writ petition.”
Do note, the Bench notes in para 16 that, “The main issue involved in the present writ petition is, as to whether, the Disciplinary Authority, who has to take decision in accordance with the procedure prescribed under Rule 17, C.C.A. Rules, 2005, can even before initiation of the Departmental Proceeding can be said to have been influenced by Letter No. 63 (01 implementation) 2019-20-1296/Excise Prohibition dated 24.11.2020 and the Suspension Order passed by the Director General of Police, Bihar, particularly paragraph no. 3 raises a presumption of guilt even before framing of charge and giving opportunity of post decisional hearing is violative principle of natural justice and Article 21 of the Constitution of India?”
Do further note, the Bench notes also in para 22 that, “I further find that the Post Decisional hearing is one with close mind and it is a fact that it is detrimental in nature and it would be a formality in case it is done with a prejudiced mind with pre-supposed decision of awarding the punishment and hence post decisional hearing would not be as effective. Furthermore, the basic prospect of natural justice requires pre decisional hearing and not post decisional hearing and the law granting post decisional hearing has been well settled by the Apex Court by holding that if the authorities have taken decision to take action before initiation of departmental proceeding, granting post decisional hearing will only be held to be an empty formality calling for violation of principle of natural justice.”
Be it noted, the Bench notes in para 23 that, “In the present case, the Director General of Police with pre-determined mind had observed that strict disciplinary action is required to be taken against the petitioner in accordance with Letter No. 63 (01 implementation) 2019-20- 1296/Excise Prohibition dated 24.11.2020, which resulted into passing of penalty order against the petitioner by the disciplinary authority who with pre conceived mind took decision to impose penalty in compliance of the letter of the Director General of Police. The facts also reveals that the statement of the witnesses has not been recorded in the manner prescribed and in this regard it would be gainful to refer the case of Union of India and Ors. v/s P. Thayangarajan, reported in (1999) SCC 733, wherein Hon’ble Apex Court has held that “the conducting officer of the enquiry has to record the statement of the witness himself in the presence of the parties and the same cannot be done in any other manner.” The facts further reveals that for similar charges show cause was issued to one Chaukidar, namely, Lalu Paswan was also suspended along with the petitioner has been exonerated from all the charges by the Senior Superintendent of Police vide order contained in Memo No. 1761 dated 03.02.2022, the same also calls for interference in light of the law laid down by the Apex Court in the case of Man Singh vs. State of Haryana reported in (2008) 12 SCC 331, wherein the Apex Court observed in paragraph no. 20, which is, inter alia, reproduced hereinafter:
“20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.”
The Apex Court in the case of Rajendra Yadav vs. State of M.P. & Ors. reported in (2013) 3 SCC 73, has held, inter alia, as under:
“9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among codelinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of codelinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.””
It is worth noting that the Bench notes in para 24 that, “I further find it apt to observe here that no documents as such has been proved against the petitioner which goes to show that there exists guilt on the part of the present petitioner. It is a well settled principle of law that gathering evidence by way of enquiry with an intention to support the pre decisional punishment will just emphasize the matter and the same is also against the principle of Natural Justice. In the case of State of Punjab vs Davinder Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770, the Apex Court has held as under:
“……sublato fundamento cadit opus” meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case……”; “Since the foundation of initiation of the departmental proceeding and its conduct have been shown to be entirely illegal, the foundation has to be necessarily removed, as a result of which the structure/work of punishment given to this writ petitioner stood, is bound to fall.””
While referring to another relevant case law, the Bench states in para 25 that, “A similar methodology was employed by the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. Union of India reported in (1981) 1 SCC 664 where a void administrative choice was approved by post-decisional hearing. An order assuming control over the administration of an organization by the Government without earlier notice or hearing was held to be bad as it abused the audi alteram partem rule. Be that as it may, the Court approved the impugned order on the grounds that the Government had consented to give post-decisional hearing.”
Quite significantly, the Bench enunciates in para 27 propounding that, “Considering the facts and circumstances of the present case and the law laid down by the Apex Court referred in above paragraphs, I find that even though the petitioner was proceeded as per the provision of C.C.A. Rules, 2005 and opportunity of hearing was given to the petitioner, in view of the conditions/directions contained in Letter No. 63 (01 implementation) 2019-20-1296/Excise Prohibition dated 24.11.2020 of the Director General of Police, in my opinion, the authorities had pre-determined to impose penalty on the petitioner and proceeded to hold quasi judicial inquiry giving the post-decisional opportunity of hearing which does not sub serve the rule of natural justice and is contrary to the principle of fair play. The authority who embarks upon a post decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. Accordingly, I set aside and quash the suspension order no. 21/2021-142 dated 01.02.2021 (Annexure-4 to the writ petition), charge memo contained in Memo No. 41 dated 09.02.2021 (Annexure-7 to the writ petition) and the penalty order contained in Memo no. 233 dated 13.04.2022 (Annexure1 to the writ petition) and the subsequent orders, if any, are also hereby set aside and quashed.”
Most significantly, what constitutes the cornerstone of this notable judgment is then encapsulated in para 28 postulating that, “I find it proper to record here that the Article 47 of the Constitution of India while mandating the duty of the State to raise standards of living and to improve the public health at large and as such State Government enacted Bihar Prohibition and Excise Act, 2016 with the said objective, but for several reasons, it finds itself on the wrong side of the history. The prohibition has, in fact, given rise to unauthorized trade of liquor and other contraband items. The draconian provision have become handy for the police, who are in tandem with the smugglers. Innovative ideas to hoodwink law enforcing agency have evolved to carry and deliver the contraband. Not only the police official, excise official, but also officers of the State Tax department and the transport department love liquor ban, for them it means big money. The number of cases registered is few against the king pin/syndicate operators in comparison to the magnitude of the cases registered against the poor who consume liquor and those poor people and are prey of hooch tragedy. The life of majority of the poor section of the State who are facing wrath of the Act are daily wagers who are only earning member of their family. The Investigating Officer deliberately does not substantiate the allegations made in the prosecution case by any legal document and such lacunae are left and the same allows the Mafia scot free in want of evidence by not conducting search, seizure and investigation in accordance with law.”
In addition, the Bench stipulates in para 29 stating that, “Be that as it may, in light of the recorded evidence, if the Disciplinary Authority finds that the petitioner should be subjected to disciplinary action, in that circumstance, petitioner is required to be put under suspension to proceed afresh in light of the law laid down by the Apex Court.”
What’s more, the Bench then directs in para 30 that, “The writ petition stands disposed of.”
Finally, the Bench then concludes by holding in para 31 that, “There shall be no order as to costs.”
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