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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, J.
Rahul Kumar Son of Sunil Kumar – Appellant
Versus
The State of Bihar, Through Principal Secretary, Home – Respondent
Criminal Writ Jurisdiction Case No.144 of 2021
Decided on : 09-02-2022
Bihar Prohibition and Excise Act, 2016 – Section 30(a) – Constitution of India – Article 226 – Seizure of Beer containing Alcohol – Charge-sheet has already been submitted but same has not yet been acted upon – Bureau of Indian Standards (BIS) specifically provides that an alcoholic beverage is one which contains more than 0.5% ethyl alcohol by volume – Definition of Bureau of Indian Standard in the Act is inclusive of standards prescribed by any other Central Government authority constituted under relevant Act – This includes standards/regulations laid down by Food Safety and Standards Authority of India (FSSAI) – Alcohol content of a beverage is susceptible to an error of margin – Alcohol content of a beverage is susceptible to an error of margin – There does not appear to be any intention on part of petitioner to breach Excise Law – There is no prohibition on sale of non-alcoholic Beverage – A minor infraction in ethyl alcohol content of a non-alcoholic beverage like fruit beer does not at all offend object and purpose of Prohibition Act – It is highly unreasonable to conclude that a minor infraction would lead to prosecution of person compulsorily – Subject FIR quashed – All other prosecution emanating out of subject FIR also quashed. (Paras 9, 16, 17, 21, 23, 24, 26, 29 to 34)
Supp(1) SCC 335; (2021) SCC OnLine SC 315; (2019) 11 SCC 706] – Relied.
Key Points: - The court quashed Guraru P.S. Case No. 100 of 2020 and all prosecutions emanating from it, noting a minor infraction in ethyl alcohol content of a non-alcoholic beverage does not offend the Act’s object and purpose. (!) (!) (!) - Alcohol content is susceptible to measurement error and there is a tolerance limit; a margin of error is inherent in testing, affecting whether the beverage is covered by prohibition. (!) (!) (!) - BIS standards (and inclusive of other central authorities like FSSAI) govern what constitutes an alcoholic beverage; regulatory standards can impact classification of beverages as intoxicants. (!) (!) (!) - The petition emphasized no coercive steps against the petitioner following seizure; court previously directed no coercive action based on nonalcoholic status. (!) (!) - Even where a charge-sheet has been submitted, quashing is permissible if the investigation or charges do not prima facie constitute an offence; referenced jurisprudence supports exercising jurisdiction to quash. (!) (!) - The case recognizes the prohibition objective is to enforce complete prohibition of liquor and intoxicants, but minor infractions in non-alcoholic beverages do not fulfill the offence. (!) (!) - The two laboratory reports showed variance; one report marginally above the limit, highlighting testing uncertainty and need for caution in prosecution. (!) (!) - The petitioner’s role as a salesperson and the product's origin and non-alcoholic certification were considered in the context of whether prosecution was warranted. (!) (!) - The decision cites that even after investigation, the court can quash if the articles are not sold as intoxicants or could not be consumed as intoxicants. (!) - The court allowed the application, quashing the FIR and all prosecutions arising therefrom. (!)
JUDGMENT :
1. Heard Mr. Mrigank Mauli, learned Senior Advocate for the petitioners and Mr. P.K. Verma, learned AAG for the State.
2. This writ petition has been filed for quashing of the entire prosecution emanating out of Guraru P.S. Case No. 100 of 2020 instituted for the offences under Section 30(a) of the Bihar Prohibition and Excise Act, 2016 (in short the ‘Excise Act 2016’) and restraining the respondents from taking any coercive step against the petitioner in pursuance of the aforementioned case.
3. An additional prayer was made on behalf of the petitioner for unsealing the premises located near the Station Road in front of Punjab National Bank in the district of Gaya.
4. The prosecution report reveals that in the shop where the petitioner was a salesman, a raid was conducted by the Assistant Sub-Inspector (Excise), Tikari Circle, Gaya and 40 cans of 330 ml of Budwiser/Non-Alcoholic Beer and 88 bottles of 330 ml of Budwiser fruit beer were recovered and seized. The samples were sent for testing and were found to have been containing 0.6% v/v ethyl alcohol.
5. Hence, the prosecution against the petitioner, as there is complete prohibition in the State of Bihar.
6. It has been urged on behalf of the petitioner that non-alcoholic drink or a fruit beer would not come within the purview of an intoxicating drink and therefore, the instant prosecution is absolutely misconceived. The learned counsel for the petitioner drew the attention of this Court to various provisions of the Excise Act, 2016 especially Sections 13, 30(a) and 30(f) thereof. This Court, vide order dated 19.03.2021 recorded as follows:
7. Section 30(f) of the Excise Act, 2016 prohibits manufacture, possession, sell, distribution, bottling, imports, exports, transportation or any preparation or ingredient made with or without the use of any intoxicant or liquor, which would 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.
8. The expression ‘intoxicant’ and ‘liquor’ also has been defined [refer to Section 2(40)and 2(44) of the Excise Act, 2016].
9. Methyl alcohol is stated to be an intoxicant.
10. However, any preparation containing methyl alcohol which is not within the permissible limits would come within the category of intoxicant or liquor, which is prohibited. Much emphasis has been laid on the provision contained in Section 30(f) of the Excise Act, 2016, which circumscribes the characterization of a drink as an alcohol by a phrase that if it is used or likely to be used for the purposes of getting intoxicated.
11. It has also been argued that notwithstanding the existence of the provision contained in Section 2(3) of the Excise Act, 2016, which defines an alcoholic drink and states that it means a solution or mixture containing alcohol, being of any strength and purity. Any drink containing methyl alcohol which may be an intoxicating agent, but if it is within the permissible limits, it cannot be characterized as an alcoholic drink.
12. In support of the aforesaid contention, learned Advocate for the petitioner has drawn the attention of this Court to the provisions contained in Section 2(4) of the Excise Act, 2016, which defines alcoholic beverage or potable liquor, as meaning any beverage containing alcohol in conformity with the BIS standards which may be intoxicating and is fit for human consumption.
13. It may not be necessary here to reiterate, it has been argued, that BIS standards is the standard prescribed by the Central Government Authority known as Bureau of Indian Standards.
14. In the notification dated 19th March, 2018, issued by the Ministry of Health and Family Welfare (Food Safety and Standards Authority of India), alcoholic beverage has been specified to be a liquor or brew containing more than 0.5% ethanol and the tolerance limit for such ethyl alcohol content has
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