Bijendra Kumar Sah vs The State Of Bihar Through Department Of Excise

Court
Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.53884 of 2018
Arising Out of PS. Case No.-74 Year-2016 Thana- BARHARA KOTHI District- Purnia
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Bijendra Kumar Sah Son of Awadhesh Sah, resident of Village- Basudeopur,
P.S.- Barhara, District- Purnea. ... ... Petitioner/s
Versus
The State Of Bihar Through Department Of Excise
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Samir Kumar, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PRAVEEN KUMAR
ORAL JUDGMENT
Date : 27-08-2026
Heard learned counsel for the petitioner and learned
A.P.P. for the State.
2. 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.
3. No counter-affidavit has been filed on behalf of the
State in compliance of the order dated 05.12.2019.
4. As per the allegation, a total quantity of 136.740 liters
of foreign liquor was recovered from the cattle shed of this
petitioner.
5. 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

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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

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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

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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.”
5.1. 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:-

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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.
5.2. 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

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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.
6. Learned A.P.P. for the State has opposed the prayer of
the petitioner and has submitted that huge quantity of foreign

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liquor has been recovered from the possession of the petitioner and
it constitutes an offence against him.
7. Heard the parties and perused the record.
8. 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.
9. 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.
10. The application stands allowed.
(Praveen Kumar, J)
Abdus/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 01.09.2026
Transmission Date 01.09.2026