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Judgment
Date : 27-08-2026 Heard learned counsel for the petitioner and learned A.P.P. for the State.
The petitioner has filed present application for quashing the order taking cognizance dated 04.02.2017 passed by A.C.J.M.-II, Purnea in Barhara P.S. Case No. 74 of 2016 for the offences punishable under Sections 272 and 273 of the I.P.C. and 47(A) of Excise Act.
No counter-affidavit has been filed on behalf of the State in compliance of the order dated 05.12.2019.
As per the allegation, a total quantity of 136.740 liters of foreign liquor was recovered from the cattle shed of this petitioner.
Learned counsel for the petitioner has submitted that one Alok Kumar Singh, was the licensee and he has taken the premises on rent from brother of the petitioner, namely, Shankar Kumar Sah for running a liquor shop. It has further been submitted that the date of alleged seizure was on 03.04.2016, and the Bihar Prohibition and Excise Act, 2016, came into force on the day of its publication in the official gazette. It has further been submitted that, initially, the prohibition was with respect to country-made liquor and was to come into effect from 01.04.2016, but there was no direction or any excise policy with respect to foreign liquor and by notification No. 11 of the Excise policy dated 05.04.2016, the sale, consumption and storage even by a licensee was banned. It has further been submitted, referring to Article 20 of the Constitution of India, that a person cannot be prosecuted for an offence which was not in force at that point of time. In support of his submission, learned counsel for the petitioner has placed reliance on a judgment of the Hon’ble Supreme Court, in the case of Rattan Lal @ Ram Rattan Vs. State of Punjab (AIR 1965 SC 444), and has referred to paragraph 6 of the said judgment, which is reproduced hereinbelow :-
6.The first question is whether the High Court, acting under Section 11 of the Act, can exercise the power conferred on a court under Section 6 of the Act. It is said that the jurisdiction of the High Court under Section 11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the trial court had, and in the present case the trial court could not have made any order under Section 6 of the Act, as at the time it made the order the Act had not been extended to Gurgaon district. On this assumption, the argument proceeds, the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation. In support of this contention a number of decisions bearing on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition.
If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such a law is retrospective and, if so, to what extent depends upon the interpretation of a particular statute, having regard to the well-settled rules of construction. Maxwell in his book On Interpretation of Statutes, 11th Edn., at pp. 274-275, summarizes the relevant rule of construction thus:
“The tendency of, modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, then formerly. It is unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence.”
Learned counsel for the petitioner has also placed reliance on the judgment of the Hon’ble Supreme Court, in the case of Basheer v. State of Kerala (2004) 3 SCC 609 reported in 2004 SCC (Cri) 1107, and has referred to paragraph 12 of the said judgment, which is reproduced hereinbelow:-
12.There is no doubt as to the correctness of the principle on which the two judgments of the High Courts rely. All statutes must be interpreted as prospective in operation, unless retrospectivity is expressly declared by the statute or to be inferred as the necessary intendment from the language used in the statute. As far as the amendments introduced in the NDPS Act, 1985, by Act 9 of 2001 are concerned, Section 41, in terms, says that the amending Act would apply to all cases pending before the court or under investigation on the date of commencement of the amending Act. In other words, it is to be applied retrospectively. If the Act had contained any provisions to the detriment of the accused, then undoubtedly, it would have been hit by the rule against post facto legislation contained in Article 20(1). However, we find that the amendments (at least the ones rationalising the sentencing structure) are more beneficial to the accused and amount to mollification of the rigour of the law. Consequently, despite retrospectivity, they ought to be applied to the cases pending before the Court or even to cases pending investigation on the date on which the amending Act came into force. Such application would not be hit by Article 20(1) of the Constitution.
It has further been submitted that if the Act contained any provision to the detriment of the accused, then undoubtedly it would have been hit by the rule against post facto legislation contained in Article 21. It has further been submitted that the law, so constituted does not prescribe retrospective effect and thus submission has been advanced that, at best, the offence would have been made out against the petitioner from 05.04.2016, whereas the offence was allegedly committed on 03.04.2016. It has further been submitted that the present case has been lodged under Section 47(A) of the Excise Act 1915, and the ingredients of the same are not made out against the petitioner as it would appear from a perusal of Section 47(A), as it existed prior to amendment, with effect from 05.02.2016, that Section 47(A) of the Act applies only to a person, who is concerned with the management of a company, while in the present case, it is not an allegation that offence was committed by a company as has been mandated under Section 47(A) of the Act 1915 (prior to the amendment) and the petitioner is not alleged to be concerned with the management of any company. It has further been submitted that the continuation of proceeding against the petitioner would be an abuse of the process of the court, and the charge-sheet has been filed without ascertaining the true facts and the cognizance has been taken upon the said charge-sheet in a mechanical manner without applying judicial mind.
Learned A.P.P. for the State has opposed the prayer of the petitioner and has submitted that huge quantity of foreign liquor has been recovered from the possession of the petitioner and it constitutes an offence against him.
Heard the parties and perused the record.
Considering the facts and circumstances as well as the facts keeping in mind Article 20 of The Constitution of India as well as the notification of the Government with respect to new excise policy which was to come into force on 05.04.2016. The continuation of proceeding against the petitioner would be an abuse of the process of Court.
Accordingly, the order taking cognizance dated 04.02.2017, with respect to the petitioner, passed by A.C.J.M.-II, Purnea in Barhara P.S. Case No. 74 of 2016, is hereby quashed.
The application stands allowed.