IMPORTANT POINT
The court established that mere allegations of inaction do not constitute an offense under the Bihar Prohibition and Excise Act unless there is clear evidence of refusal to perform duties or contravention of the Act.

JUDGMENT :

Satyavrat Verma, J.

Heard learned Senior Counsel for the petitioner and learned A.P.P. for the State.

2. The present application has been filed seeking quashing of the order dated 20.04.2023 passed by the learned Court of Exclusive Excise Court No.1, Gaya in Fatehpur P.S. Case No. 312 of 2022, dated 28.05.2022, Excise G.R. No. 642 of 2022 whereby cognizance has been taken under Sections 51 and 52 of the Bihar Prohibition and Excise Act, 2016 against the accused persons, including the petitioner.

3. Learned Senior counsel for the petitioner submits that the petitioner, at the relevant point of time, was the Senior Superintendent of Police, Gaya and an FIR being Fatehpur P.S. Case No. 312 of 2022 dated 28.05.2022 came to be instituted implicating him under Section 51 of the Bihar Prohibition and Excise Act, 2016. Learned Senior Counsel further submits that the allegations as alleged in the FIR was that on 26.03.2021, 170 litres of country-made liquor was recovered from a Santro car but no FIR was lodged by Sanjay Kumar, S.H.O., Fatehpur Police station and the petitioner did not take any step to get the FIR instituted, further on instruction of the senior police officer, the FIR being Fatehpur P.S. Case No. 112 of 2021 dated 13.04.2021 was registered. It is next alleged that it came to the knowledge that the petitioner had initiated disciplinary proceedings against Shri Sanjay Kumar, the then SHO, Fatehpur for lodging the FIR with delay and punished him with censure, further that the aforesaid facts indicated towards the illegal activities of Sanjay Kumar, the then SHO, Fatehpur and the action taken by the petitioner against him indicates towards illegality and irregularity of the petitioner which was an offence under Section 51 of the Bihar Prohibition and Excise Act, 2016.

4. Learned Senior Counsel for the petitioner submits that from perusal of the allegations as alleged in the FIR, it would manifest that even if the allegations are accepted on its face value, then also no criminal offence is made out against the petitioner much less any offence under Sections 51 and 52 of the Bihar Prohibition and Excise Act, 2016. Learned Senior Counsel further relied on the pleadings made at paragraphs ‘5’ to ‘9’ of the quashing application to submit that the petitioner is a bold officer and did commendable work wherever he was posted as detailed in those paragraphs. It is next submitted that from perusal of Annexure-3 to the quashing application, it would manifest that while the petitioner was the Senior Superintendent of Police, Gaya, the maximum number of liquor cases were instituted and the culprits were arrested. It is submitted that the moment the present FIR came to be instituted after a delay of nearly one year from the date of occurrence, the petitioner moved this Court by filing Cr. Misc. No. 39928 of 2022 seeking anticipatory bail. It is further submitted that this Court vide order dated 08.08.2022 in Cr. Misc. No. 39928 of 2022 was pleased to grant anticipatory bail after taking into consideration the fact that under the Bihar Prohibition and Excise Act, anticipatory bail is not maintainable.

5. It is next submitted that after the petitioner was granted anticipatory bail, the police investigated the case threadbare and came to a considered conclusion that petitioner was innocent and thus submitted Final Form No. 285 of 2022 dated 10.09.2022 (Annexure-7 to the quashing application) in the Court of learned Additional Judge, Excise Gaya as mistake of law.

6. Learned Senior Counsel for the petitioner thus submits that the thrust of the allegation hinges around Sanjay Kumar, the S.H.O., who had not instituted the FIR, though 170 litres of liquor was recovered from the Santro car. It is further submitted that the petitioner was the Senior Superintendent of Police of the district, as such, it cannot be presumed that he was having information on day-to-day basis with respect to the concerned police station, the practical problems ca