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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, J.
Cr. WJC No.280 of 2021
(9.2.2022)
Mukesh Kumar ... Petitioner
vs.
State of Bihar ... Respondents
Bihar Prohibition and Excise Act, 2016 – Sections 30(a) and 35(e) – Indian Penal Code, 1860 – Sections 272, 273, 465 and 420 – Constitution of India – Article 226 – Allegation of manufacturing and selling alcohol mix drinks under garb of selling non-alcoholic drinks – Alcohol may occur naturally in a beverage – Scientific studies show that content of Ethyl Alcohol in beverages is likely to change with change in climatic conditions, temperature, sunlight and other external factors and natural processes – Any wrongful prosecution, based on an erroneous test result may lead to undue harassment of individuals under Prohibition Act – There appears to be only a minor excess of 0.8% in content of Ethyl Alcohol in sample – Since there are two conflicting test reports, benefit must be given to accused – There is no prohibition on sale of non-alcoholic beverage – Object of Prohibition Act is to enforce, implement and promote complete prohibition of liquor and intoxicants in State of Bihar – A minor infraction would not make a non-alcoholic beverage and alcoholic drink – If allegations made in FIR, if taken on its face value and accepted in its entirety does not prima facie constitute any offence or make out any case against accused, such subject FIR can be quashed – If articles, so seized, were not sold as intoxicants or could be consumed as intoxicants, it would not fall under category of liquor which is prohibited under the Act – A margin of error is inherent in such strict legislation – Facts of this case does not warrant prosecution of petitioner – 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 – FIR and criminal proceedings quashed. (Paras 10, 19, 30, 31, 33 to 40)
Key Points: - The petition seeks to quash the entire prosecution arising from Pandaul P.S. Case No. 270 of 2020 and restrain coercive steps. (!) - The petitioner is a distributor of non-alcoholic beverages and claimed lawful purchase with GST invoices and license under Food Safety Act. (!) (!) - There was a report finding Ethyl Alcohol content in samples at 0.8% and 0.07%, suggesting presence of fermented liquor and alleged manufacturing/selling of alcohol mix drinks. (!) (!) - There are two conflicting chemical examination reports; the judgment emphasizes giving the benefit to the accused where reports conflict. (!) - It is noted that there is no prohibition on sale of non-alcoholic beverages and a minor infraction would not convert a non-alcoholic beverage into an alcoholic drink; margin of error inherent in strict legislation. (!) (!) - The absence of testing rules/protocols and potential for error in testing is highlighted; cautions against wrongful prosecutions due to erroneous test results. (!) (!) - The Court references the object of the Prohibition Act to enforce complete prohibition of liquor; but a minor excess in ethyl alcohol content does not warrant prosecution in this case. (!) (!) - The FIR and cognizance order are quashed; all proceedings emanating from the subject FIR are quashed. (!) - The significance of reasonable tolerance/variation in testing, aligning with guidelines from other regulatory contexts, is discussed though not creating a binding rule here. (!) (!) - There is no intention to breach excise law evidenced in the case; prosecution deemed unwarranted. (!)
Ashutosh Kumar, J.—Heard Mr. Satyabir Bharti, learned Advocate for the petitioner and Mr. P.K. Verma, learned AAG for the State.
2. This writ petition has been filed for quashing the entire prosecution emanating out of Pandaul P.S. Case No. 270 of 2020 instituted for the offences under Sections 30(a) and 35(e) of the Bihar Prohibition and Excise Act, 2016 and under Sections 272, 273, 465 and 420 of the Indian Penal Code and restraining the respondents from taking any coercive step against the petitioner in pursuance of the aforementioned case.
3. The petitioner is the distributor of various food products in the district of Madhubani including non-alcoholic beverages.
4. The prosecution case in this instance has been instituted on the written complaint dated 21.10.2020 of one Jitendra Kumar Singh, posted as Additional Station House Officer in Pandaul police station of Madhubani on the instructions of Madhubani Town police station (Madhubani Town P.S. Case No. 265 of 2020 dated 14.10.2020), he seized the stock from the petitioner’s shop bottles of non-alcoholic drink viz. Kingfisher Ultra, Heineken and Warrior Strawberry, which was sent for chemical examination to the Chemical Examiner of the Excise Department of Government of Bihar on 15.10.2020.
5. It was claimed that in the report of the Chemical Examiner dated 21.10.2020, it was found that in the sample there was fermented liquor having Ethyl Alcohol content of 0.8% v/v and 0.07% v/v respectively.
6. It was thus alleged that the accused persons including the petitioner were manufacturing and selling alcohol mix drinks under the garb of selling non-alcoholic drinks.
7. During the pendency of this writ application chage-sheet has been submitted against the petitioner on the basis of which cognizance has been taken against him under Sections 272, 273, 465 and 420 of the Indian Penal Code and Sections 30(a) and 35(e) of the Bihar Prohibition and Excise Act, 2016.
8. By way of I.A. No. 1/2021 the aforesaid order of cognizance also has been challenged.
9. The learned Advocate for the petitioner has submitted that he had lawfully purchased – the non-alcoholic drinks through GST invoices for sale in the district of Madhubani. He has a license under the Food Safety Act of aforesaid beverages.
10. It is well known that alcohol may occur naturally in a beverage. Scientific studies show that the content of Ethyl Alcohol in beverages is likely to change with change in climatic conditions, temperature, sunlight and other external factors and natural processes.
11. A reference has been made by the counsel for the petitioners of a judgment of Courts of Appeal for the Tenth Circuit in Adolph Coors Company vs. Nicholas Brady.
12. In the aforesaid case, testimony had been given during Federal Alcohol Control Administration Hearings confirming that the disclosures of the alcohol content in some of the malt beverages were misleading and therefore they could be subjected to misuse. It was found that it was difficult to exactly measure the alcohol content as the content changed with the atmospheric pressures and varying temperatures. It was thus suggested there that some percent error of margin has to be provided for while measuring the content of alcohol in such drinks. (Adolph Coors Company vs. Nicholas Brady reported as 944 F.2d 1543).
13. In the State of Kerala and others vs. Unni and another (2007) 2 SCC 365, the Supreme Court while considering Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 in respect of toddy, it found that toddy fermented automatically after sunrise. If it were permitted to be sold within a short time after it is tapped, the content could be measured. But it was difficult to fathom as to at what point of time precisely, the Ethyl Alcohol content in such toddy would exceed the base standard. The climatic conditions also would be the reason for change in the measurement and that also is required to be factored in.
14. The Supreme Court, therefore, was of the view t
The main legal point established in the judgment is the limited scope of the court's jurisdiction under Section 482 of the CrPC and the need for a full trial to determine the genuineness of the mater....
Quashing of FIR under IPC and Excise Act requires a prima facie case to avoid misuse of legal processes; non-existence of cheating and forgery is essential for quashing allegations.
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