Alcohol ban gave rise to illicit trade of liquor and other contraband items, officials love the ban as it means big money: Patna HC

The court mentioned that the "magnitude" of cases filed against the "poor who consume liquor and those poor people and are prey of hooch tragedy" is "much greater" than the "few" complaints filed against the kingpin/syndicate operators.

The Patna high court on 29th October pronounced that the state’s prohibition law had essentially encouraged a new crime of smuggling alcohol and other unlawful contraband in Bihar, while also overturning a demotion order against a police officer. Although the Excise Prohibition law was passed to enhance public health, the court stated that “for several reasons, it finds itself on the wrong side of the history” when latter quashed the directive imposed on the grounds that he had been negligent in enforcing the law.

It also highlighted that the state’s prohibition statute actually contributed to the unauthorized trade in alcohol and other illegal items and that officials from the police, excise, tax, and transportation departments “love” the liquor ban since it “means big money” to them. The court was considering a plea from an Inspector who had been demoted after the excise department carried out a raid near the petitioner’s jurisdictional police station and found Rs 4 lakh worth of “illicit foreign liquor” in a godown. He was accused of violating Rule-3(1) of the Government Official Conduct Rule by failing to uphold the Excise Prohibition Law. The ruling was issued by Justice Purnendu Singh.

He declared, “I find it proper to record here that the Article 47 of the Constitution of India while mandating the duty of the state to raise standards of living and to improve the public health at large and as such state government enacted Bihar Prohibition and Excise Act, 2016 with the said objective, but for several reasons, it finds itself on the wrong side of the history. The prohibition has, in fact, given rise to unauthorized trade of liquor and other contraband items. The draconian provision have become handy for the police, who are in tandem with the, smugglers. Innovative ideas to hoodwink law enforcing agency have evolved to carry and deliver the contraband. Not only the police official, excise official, but also officers of the state tax department and the transport department love liquor ban, for them it means big money.”

The court mentioned that the “magnitude” of cases filed against the “poor who consume liquor and those poor people and are prey of hooch tragedy” is “much greater” than the “few” complaints filed against the kingpin/syndicate operators. It further underlined that “daily wagers who are only earning member of their family” make up the majority of the state’s impoverished population, who are subject to the Bihar Prohibition and Excise Act’s fury.

It stated that there are still gaps in the case since the investigating officer “deliberately” failed to provide any legal documentation to support the accusations made in the prosecution’s case. The judge pointed out that this permits the “Mafia scot free in want of evidence by not conducting search, seizure and investigation in accordance with law.” It further underlined, “The severe provisions of the prohibition law have become convenient tools for the police, who often act in collusion with smugglers. New tactics to evade law enforcement have developed, facilitating the transportation and distribution of contraband items in Bihar.”

After reviewing the pleadings and the material on file, the court stated that the charge memo would demonstrate that it was framed in line with the directive of the Director General of Police, Bihar, who had instructed the Senior Superintendent of Police, Patna, in a letter dated 1st February 2021 to refer to the November 2020 letter. The letter indicated that the concerned Station House Officer (SHO) would be held accountable and that strict action would be necessary against him in the event that illicit liquor was recovered from the territorial jurisdiction of any police station.

The court conveyed, “Following the condition contained in Letter No. 63 dated 24.11.2020, the Director General of Police, had suspended the petitioner vide order contained in Letter No. 21/2021-142 dated 01.02.2021 resulting into passing of the Penalty Order by the Disciplinary Authority.” It added, “I further find that the Post Decisional hearing is one with close mind and it is a fact that it is detrimental in nature and it would be a formality in case it is done with a prejudiced mind with pre-supposed decision of awarding the punishment and hence post-decisional hearing would not be as effective,” while citing supreme court and high court decisions on the matter.

It further emphasized that a “pre-decisional hearing and not post-decisional hearing” is necessary for the fundamental idea of natural justice. According to the court, the supreme court has correctly ruled that the law granting post-decisional hearings is an “empty formality calling for violation of the principle of natural justice” if the authorities have already decided to take action prior to the start of departmental proceedings.

The Director General of Police, based on the court in this case, had a “pre-determined mind” when he insisted that the petitioner needed to face severe disciplinary action in line with the November 2020 letter. As a result, the court observed, the disciplinary authority “with preconceived mind took the decision to impose penalty in compliance of the letter of the Director General of Police” and issued a penalty order against the petitioner. The court concluded that the evidence showed that the witnesses’ statements had not been recorded appropriately either.

The court then overruled the suspension and penalty imposed on the petitioner, saying, “Considering the facts and circumstances of the present case and the law laid down by the apex court referred in above paragraphs, I find that even though the petitioner was proceeded as per the provision of C.C.A. Rules, 2005 and opportunity of hearing was given to the petitioner, in view of the conditions/directions contained in Letter No. 63 (01 implementation) 2019-20-1296/Excise Prohibition dated 24.11.2020 of the Director General of Police, in my opinion, the authorities had pre-determined to impose penalty on the petitioner and proceeded to hold quasi judicial inquiry giving the post-decisional opportunity of hearing which does not sub serve the rule of natural justice and is contrary to the principle of fair play.”

The court stressed that there is very little likelihood of receiving a “proper consideration” of the representation at such a post-decisional opportunity since the authority that initiates a post-decisional hearing “will naturally proceed with a closed mind.” When the court dismissed the petition, it maintained that the “petitioner is required to be put under suspension to proceed afresh in the light of the law laid down by the apex court” if the disciplinary authority identified that the petitioner should face disciplinary action based on the “recorded evidence.”

Background of the matter

Mukesh Kumar Paswan who held the position of Inspector of Police at a Patna police station filed a writ petition and the order was granted. The Excise Department carried out a raid in the region that was under the petitioner’s police station’s jurisdiction. The petitioner witnessed the raid that resulted in the “recovery of illicit foreign liquor” of Rs. 4 lakh. The petitioner created a seizure list and filed a formal complaint against the defendants. Since the godown where the raid took place is barely 500 meters from the police station, it is stated that the petitioner’s involvement in the sale of illegal alcohol along with one chowkidaar cannot be denied, in contravention of the instructions in a letter dated November 2020.

On 1st February 2021, the Director General of Police, Bihar, subsequently suspended him. The petitioner received a memo of charge dated February 6, 2021. On February 9, 2021, the petitioner was given a show-cause notice by the Inspector General of Police, Central Range, Patna, asking him to explain why he should not be convicted of violating Rule-3(1) of the Government Official Conduct Rule, 1976 by failing to enforce the Excise Prohibition Law. In March 2021, the petitioner presented a thorough show-cause reply refuting every claim. Following an investigation, the inquiry officer did, however, propose the “major penalty” of dismissing the petitioner. The petitioner then filed a high court appeal after the Disciplinary Authority found him guilty of the allegations and issued a penalty order on 13th April 2022, demoting him to a basic pay tier of Police Sub Inspector for five years.

The court was examining whether the November 2020 letter and DGP’s Suspension Order, which raises a presumption of guilt even before framing charges and providing an opportunity for a post-decisional hearing, might have influenced the Disciplinary Authority, which must make a decision in accordance with the procedure prescribed under the Bihar Government Servants (Classification, Control & Appeal) Rules 2005. This was alleged to be a breach of Article 21 of the Indian Constitution and the principle of natural justice.