The Patna High Court has held that Section 73(e) of the Bihar Prohibition and Excise Act, 2016 is not mandatory, noting that the legislature has used the word “may” and not “shall” in the provision.

A Single Judge Bench of Justice Praveen Kumar made the observation while refusing to interfere with an order taking cognizance against a man for offences under Section 273 of the Indian Penal Code and Section 30(a) of the Bihar Excise Amendment Act, following the alleged recovery of six bottles of foreign liquor from him at Patna Junction.

The petitioner had challenged the order taking cognizance dated March 27, 2018. According to the prosecution, on February 27, 2018, a police team was patrolling the railway platforms at Patna Junction when the Duronto Express arrived at Platform No.3. The petitioner was allegedly spotted moving towards the central foot-over-bridge staircase carrying a red bag and attempted to escape on seeing the police.

He was apprehended and the bag was searched in the presence of two independent seizure witnesses. The police allegedly recovered six one-litre bottles of foreign liquor, comprising two bottles each of 100 Pipers Deluxe Blended Scotch Whisky, VAT 69 Blended Scotch Whisky and Johnnie Walker Red Label Blended Scotch Whisky. The prosecution further alleged that the petitioner disclosed during interrogation that he had brought the liquor from Shalimar Railway Station for delivery at Patna Junction.

Before the High Court, the petitioner argued that the search and seizure was in violation of Section 73(e) of the Bihar Prohibition and Excise Act. He referred to the Bihar Prohibition and Excise (Amendment and Validation) Act, 2020, by which the expression “Sub Inspector” in the provision was substituted by “Assistant Sub Inspector”.

It was further contended that the search and seizure violated Section 100 CrPC and that there were inconsistencies in the statements of the seizure witnesses. The petitioner argued that failure to follow the provisions governing search and seizure under the Excise Act vitiated the case against him.

Rejecting the contention, the High Court held that Section 73(e) uses the word “may” and does not make its requirement mandatory through the use of “shall”. It noted that the position remained unchanged even when Section 73(e) was amended in 2020. The Court observed:

“Perusal of Section 73(e) of the Act goes to show that the word 'may' is prescribed and it has not been made mandatory by insertion of word 'shall', the same was the position, when by Section 2 of Bihar Prohibition and Excise (Amendment and Validation Act, 2020), amendment with respect to provision under Section 73(e) was made but the word may still remained.”

As regards the alleged inconsistencies in the statements of the witnesses, the Court held that these were matters of defence which could be considered at the appropriate stage. The High Court also rejected the contention concerning submission of the chargesheet beyond the statutory period, holding that this would not vitiate the trial or render the cognizance order bad in law.

On the allegation of mala fides, the Court held that the issue could be considered at the stage of defence, particularly when the prosecution case was that the liquor had been recovered from the conscious possession of the petitioner.

Finding prima facie material against the petitioner, the Court concluded that the order taking cognizance did not warrant interference. Accordingly, the petition was dismissed.

Case Title: Akash Kumar v. State of Bihar

Case Number: Criminal Miscellaneous No.60367 of 2018

Appearance:

For the Petitioner: Mr. Anil Kumar, Advocate

For the State: Mr. Sucheta Yadav, APP-

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