State's Alcohol Ban Led To Illegal Liquor Trade; Police, Excise, Tax, Transport Dept Officials Love The Ban As It Means Big Money: Patna HC

While quashing the penalty of demotion imposed on an Inspector on the ground that he had been negligent in implementing the Excise Prohibition law, the Patna High Court observed that while the law was passed with the objective of improving public health however "for several reasons, it finds itself on the wrong side of the history".

In doing so the court observed that prohibition law in the State has, in fact, given rise to unauthorized trade of liquor and other contraband items and that the police, excise, tax and transport department officials "love" the liquor ban as for them it "means big money".

The court was hearing a plea moved by an Inspector who was penalised by demotion after Rs 4 Lakh worth of "illicit foreign liquor" was recovered from a godown in a raid conducted by the excise department which was located close the petitioner's jurisdictional police station. He was charged with being negligent in implementation of Excise Prohibition Law which is in violation of Rule-3(1) of the Government Official Conduct Rule.

Justice Purnendu Singh in his October 29 order said, "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 further said that the number of registered cases  against the king pin/syndicate operators are "few"  in comparison to the "magnitude" of cases registered against the "poor who consume liquor and those poor people and are prey of hooch tragedy".

It further emphasized that the life of the majority of the poor section of the State who are facing wrath of the Bihar Prohibition and Excise Act are "daily wagers who are only earning member of their family".

It noted that in the present case, the Investigating Officer "deliberately" did not substantiate the allegations made in the prosecution case by any legal document and such lacunae are left. This the court noted allows the "Mafia scot free in want of evidence by not conducting search, seizure and investigation in accordance with law". 

Background

The order was passed in a writ petition moved by an man who was posted on the post of Inspector of Police at a police station in Patna. A raid was conducted by the Excise Department in the area falling under the jurisdiction of the petitioner's police station. The petitioner was present during the course of raid leading to "recovery of illicit foreign liquor" amounting to Rs. 4 Lakh.

The petitioner lodged FIR against accused persons and prepared seizure list. It is alleged that the participation of the petitioner in the sale of illicit liquor along with one chaukidaar, cannot be denied as the godown, in which raid was conducted, is only 500 meters from the police station, which is in violation of the direction contained in a November 2020 letter.

He was thereafter suspended by the Director General of Police, Bihar on February 1, 2021. A memo of charge dated February 6, 2021 was served to the petitioner. Thereafter, Inspector General of Police, Central Range, Patna on February 9, 2021 issued the petitioner a show cause as to why he be not held guilty for being negligent in implementing Excise Prohibition Law which is in violation of Rule-3(1) of the Government Official Conduct Rule, 1976.

The petitioner submitted his detailed show cause reply in March 2021 denying all the allegations. However the Inquiry Officer after holding inquiry recommended the "major penalty" of dismissal of the petitioner. Thereafter, the Disciplinary Authority held the petitioner guilty of the charges and passed the Penalty Order on April 13, 2022 demoting him to a basic pay scale of Police Sub Inspector for five years, against which he moved the high court. 

The court was considering whether the Disciplinary Authority–who has to take a decision as per procedure prescribed under Bihar Government Servants (Classification, Control & Appeal) Rules 2005, can even before initiation of the Departmental Proceeding be said to have been influenced by the November 2020 letter and DGP's Suspension Order which raises a presumption of guilt even before framing of charge and giving opportunity of post decisional hearing which was claimed to be violative principle of natural justice and Article 21 of the Constitution of India. 

Findings

Perusing through the pleadings and material on record the high court said that the charge memo would show that it has been framed on the direction of the Director General of Police, Bihar, who had in its February 1, 2021 letter directed the Senior Superintendent of Police, Patna by referring to the November 2020 letter which said that in case of recovery of illicit liquor from any police station's territorial jurisdiction, the concerned Station House Officer (S.H.O) would be held guilty and strict action is required against him.

"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," the court noted. 

Referring to decisions of the Supreme Court and the high court on post decision hearing the court thereafter observed, "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". 

It further underscored that the basic prospect of natural justice requires a "pre decisional hearing and not post decisional hearing".

The court said that the law granting post decisional hearing has been well settled by the Supreme Court by holding that if the authorities have taken decision to take action before initiation of departmental proceeding, granting post decisional hearing will only be held to be an "empty formality calling for violation of principle of natural justice". 

In the present case, the court said that the Director General of Patna High Court Police with "pre-determined mind" had observed that strict disciplinary action is required to be taken against the petitioner in accordance with November 2020 Letter. This the court noted resulted into passing of penalty order against the petitioner by the disciplinary authority "who with pre conceived mind took decision to impose penalty in compliance of the letter of the Director General of Police".

The court found that the facts revealed that the statement of the witnesses had also not been recorded in the manner prescribed. 

Quashing the suspension and the penalty imposed on the petitioner the high court thereafter said, "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 underscored that the authority who embarks upon a post decisional hearing "will naturally proceed with a closed mind" and so there is hardly any chance of getting a "proper consideration" of the representation at such a post-decisional opportunity. 

Disposing of the petition, the court said that in view of the "recorded evidence", if the Disciplinary Authority finds that the petitioner should be subjected to a disciplinary action, in that circumstance, the "petitioner is required to be put under suspension to proceed afresh in light of the law laid down by the Apex Court". 

Case title: Mukesh Kumar Paswan v/s The State of Bihar and Others

LL Citation: 2024 LiveLaw (Pat) 106 

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