Bihar Prohibition Law 'Draconian': Patna High Court Flags 'Disturbing' Trend Of Arbitrary Seizure Of Houses Linked To Liquor Recovery

The Patna High Court recently criticised the provisions of the Bihar Prohibition and Excise Act, 2016, and the Bihar Prohibition and Excise Rules, 2021, calling them 'draconian', noting that they give the authorities 'unguided' and 'arbitrary' powers. A division bench of Acting Chief Justice PB Bajanthri and Justice SB PD Singh also pointed to a 'disturbing trend' in which houses could be sealed, seized, confiscated and even auctioned merely upon their involvement in any offence under the Act. The Court added that even though the Act states that the state government can issue necessary directions, guidelines, regulations and instructions regarding the mode and manner of search and seizure, destruction and confiscation, the existing provisions [Section 57 B of the Act and Rules 12 B, 13 B, and 14 of the 2021 Rules] are 'insufficient'. The bench stressed that authorised officers are very likely to misuse the provisions and make arbitrary decisions. "In the absence of any specific guidelines, such powers can be abused or misused and such powers can be exercised arbitrarily insofar as alleged proven charge and commensurate penalty could be seen in the better legislation- like provisions of Criminal Procedure Code read with Indian Penal Code, where the sentence/conviction is proportionate to the proved charges", the bench observed. The bench made these remarks while dealing with a writ plea filed by one Mahendra Prasad Singh, whose residential house was sealed and confiscation proceedings were initiated on the allegation that liquor had been recovered from the premises. He claimed that he had nothing to do with the alleged recovery, yet drastic action had been taken against him, and his house was sealed. Essentially, the liquor was alleged to have been recovered from the basement of the building belonging to the petitioner, which was let out on rent. His name surfaced in the present case only because he owns the building, despite the fact that he had no knowledge about the tenant's activities. Noting that even though the petitioner's son was not found in possession of liquor, yet the house was sealed, the bench, referring to the statutory framework, observed thus: "The provisions under the Rules as well as under the Act are apparently draconian in nature". The bench also flagged the issue that there is no subjective assessment under Section 56 of the Act regarding the premises' involvement and the hardship that will be faced by the persons, apparently without any fault of their own. In this regard, the bench referred to certain examples, which are summarised below: If a particular premises is on rent and separate from the tenant/lessee, the owner could be made an accused (as happened in the present case). If a member of the joint family keeps a bottle of liquor in the premises without knowledge of other inmates, will the premises be seized and sealed and will a confiscation proceeding be started to remove all the inmates from joint family property simply on the ground that the law provides so? What if any recovery is made from a government quarter, will the State come forward and seize/seal/confiscate and auction the property? The Court also referred to the issue of there being no subjective relationship between the quantity of liquor seized and the premises sealed or the penalty imposed. The Court noted that even though the Rules provide for considering the individual's economic status, the nature of his involvement in the crime, the location of the premises and the quantity of intoxicant recovered when deciding the quantum of the fine, the Rules also provide that the fine shall not be less than Rs. one lakh. "This is simply absurd as to whether there is recovery of 100 ml. of intoxicant or 1,00,000 liters, minimum fine shall be Rs. one lakh. The provisions of law discussed here-in-before even give complete discretion to the confiscating authorities with regard to imposition of penalty since no guidelines have been provided. This may create anomalous situation as the jurisdictional authority in one area, in similar circumstances, may impose a lesser penalty, whereas for the same act, the jurisdictional authority in another area may impose higher penalty", the bench noted. Against this backdrop, the Court emphasised that the enactment of law and rules in such a manner may make them arbitrary, which goes against the spirit of Article 19 (6) of the Constitution. The bench, however, refrained from making any further comments on the provisions under the Act as it noted that neither the Act nor its Rules were in dispute. Coming to the facts of the case, the Court categorically said that a person can't be made to suffer for being the landlord/owner of the premises in question if recovery of some intoxicant materials has been made without his knowledge or intention. Accordingly, the respondent...

Bihar Prohibition Law 'Draconian': Patna High Court Flags 'Disturbing' Trend Of Arbitrary Seizure Of Houses Linked To Liquor Recovery

Sparsh Upadhyay

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