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IN THE HIGH COURT OF JUDICATURE AT PATNA
Sanjay Priya, J.
PRASHANT PRAKASH - Appellant
Vs.
STATE OF BIHAR - Respondent
Criminal Miscellaneous No. 28544 of 2016
Decided On : 24-08-2018
Excise Act - Valid Licence - Interpretation of Ban on Trade and Consumption of Foreign Liquor
Fact of the Case:
The petitioner, owner of a restaurant-cum-bar, was found in possession of foreign liquor despite a ban on trade and consumption of foreign liquor in the state of Bihar. The petitioner argued that he had a valid license and was not informed about the ban or the cancellation of his license.
Finding of the Court:
The court found that the petitioner, having a valid license and no evidence of trade or consumption of liquor, was not liable for the offense under Section 47A of the Excise Act. The court set aside the order and the entire criminal prosecution against the petitioner.
Issues: The key issue was whether the petitioner, with a valid license, could be held liable for the offense under Section 47A of the Excise Act due to the ban on trade and consumption of foreign liquor.
Ratio Decidendi: The court held that the petitioner, with a valid license and no evidence of trade or consumption, was not in violation of the ban on trade and consumption of foreign liquor.
Final Decision: The court set aside the order and the entire criminal prosecution against the petitioner.
Sanjay Priya, J.
This petition has been filed under Section 482 Cr. P.C. for quashing the order dated 16.5.2016 passed by J.M. 1st Class, Nalanda at Biharsharif in case no 108 C3 Excise Act/16/Trial no. 2023/16 by which learned Magistrate has taken cognizance against the petitioner for the offence under Section 47(A) of the Excise Act.
2. Learned counsel for the petitioner has submitted that he is owner of the Mirchi Restaurant -cum-Bar at Kargil Chowk, Biharsharif. He was holding a valid licence for restaurant-cum-Bar for the financial period up to 2016-17. The licence was duly renewed by the order of the District Magistrate Nalanda by order dated 2.4.16. The licence of Restaurant-cum-Bar of the petitioner has been annexed as Annexure 3 and 3/1. The raid was conducted on 5.4.2016 and several bottles of foreign Liquor (Indian made) as shown in the seizure list were recovered from the Restaurant -cum-Bar of the petitioner, in spite of total ban having been imposed in the State of Bihar on wholesale or retail trade and consumption of foreign liquor by any licence holder or any person in the whole of the State of Bihar with immediate effect.
3. Learned counsel for the petitioner has submitted that aforesaid Bihar Excise Amendment Act, 2016 was notified on 5.4.2016 in the Bihar Gazette (Extraordinary) no. 274. The petitioner was not even informed on 5.4.2016 about the gazette notification of the aforesaid Bihar Excise Amendment Act, 2016. Similarly, there was no any intimation to the petitioner that his licence for Restaurant -cum-Bar was cancelled after the amendment of the aforesaid Act. The petitioner being the bonafide owner of the Restaurant -cum-Bar having valid licence was keeping those foreign liquor (Indian made) in his Restaurant -cum-Bar. There is no any allegation in the entire prosecution report that anybody was found consuming the liquor inside the Restaurant -cum-Bar when the raid was conducted. There is no ban in Bihar Excise (Amendment Act) 2016, with regard to storage of Foreign liquor.
4. Learned counsel for the State, on the other hand, submits that after gazette notification of the Bihar Excise Amendment Act, 2016 on 5.4.2016, the ban was imposed on wholesale or retail trade and consumption of foreign liquor by any licence holder or any person in the whole of the State of Bihar with immediate effect .
5. The point for consideration by this Court is whether the petitioner who was having valid licence for Restaurant-cum Bar on the date of raid i.e. 5.4.2016, has committed any illegal act making himself liable for the offence under Section 47A of the Excise Act, only on the ground that total ban has been imposed on wholesale or retail trade and consumption of foreign liquor by any licence holder or any person in the whole of the State of Bihar with immediate effect on 5.4.2016 after gazette notification of Bihar Excise (Amendment) Act, 2016 on 5.4.2016.
6. It is admitted position from the prosecution report as well as seizure list that raid in the Restaurant-cum-Bar of the petitioner was conducted on 5.4.16. The licence of the petitioner was renewed by the order of District Magistrate, Nalanda on 2.4.2016 vide Annexure 3 and 3/1 and the same was valid for the financial period between 2016-17.
7. In such circumstances, the petitioner after renewal of his licence was keeping foreign liquor in the Restaurant -cum-Bar for trade and consumption. The Bihar Excise Amendment Act, 2016 was notified on 5.4.16. But no intimation was given to the petitioner that his licence for Restaurant -cum-Bar has been cancelled after the aforesaid gazette notification of the Bihar Excise Amendment Act, 2016.
8. There was no ban on the possession of the foreign liquor by any licence holder under Bihar Excise Amendment Act, 2016. The ban was imposed on wholesale or retail trade and consumption of foreign liquor by any licence holder or any person in the whole of the State of Bihar with immediate effect.
9. In the instant case, there is n
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