SNAPSHOTS
FROM PATNA HIGH COURT JUDGMENT DATED 30 SEPTEMBER 2016 STRIKING DOWN THE SECTION
19 (4) OF THE BIHAR EXCISE ACT, 1915 (AS AMENDED BY BIHAR EXCISE (AMENDMENT)
ACT, 2016)
Confederation of Indian
Alcoholic Beverage Companies etc etc vs
The State of Bihar etc etc (Civil Writ
Jurisdiction Case No.6675 of 2016) Bench: CHIEF JUSTICE Iqbal Ahmed
Ansari and JUSTICE NAVANITI PRASAD SINGH
1. Just to illustrate the unreasonableness,
consider a case of a person born and brought to the Metropolis like Bombay or
Delhi, educated there and serving there. Consumption of liquor to him is a part
of his life and part of his relaxation, he is accustomed to it. If he has to
move to this State and has an option, he would not do so, because he would have
to give up his life style. That would infringe not only Article 21 but also
Article 19 (1) (d) and Article 19 (1) (e) of the Constitution. He would be
inhibited from coming to this State. India is one country.
2. A
person traveling by car or by train and traversing the territory of Bihar, he
is caught in a predicament that he is going from a State, where there is no
prohibition, and going to State, where there is no prohibition. He may be an
army or defence personnel carrying his liquor ration or a ordinary citizen
carrying his drink to his destination. Neither of them consumed the same in
this State; still they are to be persecuted and prosecuted why? Their only sin is
that they chose or perforce traversed the territory of Bihar. Similar would be
the case of liquor being transported from one State to another, but crossing
through Bihar.
3. A
citizen has a right to enjoy his liquor within the confines of his house in an
orderly fashion and that right would be a part of right of privacy, a
fundamental right, under Article 21 of the Constitution and, any deprivation
thereof would have to withstand the test of Articles 14 and 19 of the
Constitution as well. While holding
so, the Patna
High Court referred to a writ petitions filed by a Retired Lt. Colonel of Army
wherein he has pleaded that all along, his long career in the defence forces,
he was used to taking liquor regularly. Even after retirement, his liquor
ration continues. Being domicile of this State, upon retirement, he is living
in Patna. He picks up his ration of liquor from Danapur Cantonment within the
district of Patna; but, now, all of a sudden, he cannot bring it home nor can
he drink at home and his long habit has come to an end, considerably upsetting
him. He cannot even go to the Cantonment to have a drink for fear of being
hounded on way back to home outside the Cantonment. Then,
turned to the case of Dr. Priya Ranjan and Dr. Anil Kumar Prasad Sinha, who not
only consume alcohol responsibly, but consider it to be good and helpful in
certain medical conditions
4. The
presumption of innocence is totally taken away and the burden of proof thereof
is put on the accused. Such provisions are found in many laws; but here a
person, charged with any offence under the Act, starts with a presumption of
guilt against him till he proves himself innocent. For any reason, if he fails
to prove his innocence, he would straightway be liable to punishment, which
would be of minimum 10 years imprisonment with astronomical fine and would lose
his entire property by virtue of confiscation and the Courts are rendered
helpless in the matter even though there may be mitigating circumstances.
5. Provision
of collective fine is entirely depended upon subjective satisfaction of the
Collector. What is the fine is left totally to the discretion of the Collector.
How and what would constitute a group and how an area would be identified, in a
town or a village, is neither known nor defined. No one has to be heard before
fine is imposed. There is no provision for appeal. It is a piece of substantive
law. Substantive law without guidance and without procedural safeguards can
only be termed as draconian, it being completely vague, uncertain and
unlimited. Even though it may professed to have a social objective to attend,
the means to achieve the same - are clearly unconstitutional. The provision is,
thus, clearly ultra vires the Constitution being in violation of Articles 14
and 21 of the Constitution.
6. The
Court adverted to the Narcotic Drugs and Psychotropic Substances Act, 1985.
With reference to Sections 15, 17, 18 and 22 thereof, it is shown that while
providing for punishment in relation to poppy straw, opium, opium poppy and
psychotropic substances respectively, there is graded punishment in the sense
where contravention involves small quantity, the maximum punishment is six
months imprisonment or with fine, which may extend to Rs. 10,000.00 or both.
For contravention involving quantities more than small quantity, but less then
commercial quantity, the punishment extends to 10 years with fine, which may
extend to Rs. one lakh and when it involves commercial quantity the punishment
is not less than 10 years imprisonment with fine not less than Rs. one lakh,
but may extend to Rs. 2 lakhs. Reference then made to Section 27 of the Act,
which is punishment in relation to consumption of Narcotic Drugs or
Psychotropic Substances, the punishment is maximum one year with fine up to
Rs.20,000.00. The provisions would show that, except for commercial quantity,
there is ample discretion on the Court. It is not that any quantity is found,
the punishment of imprisonment would be mandatory and, that too, like in the
Bihar Excise Act, minimum of 10 years. Thus, a humble rickshaw-puller
found with only a bottle or a pouch of country liquor would, now, be exposed to
minimum of 10 years of imprisonment with a fine of Rs. one lakh, an amount,
which he had ever never possessed or seen. This has to be seen in juxtaposition
of presumption clause.
7. Where
any premises or part thereof is or has been used for committing any offence
under this Act, the same can be sealed but liable to be confiscated also. The
arbitrariness of the provision is apparent from the fact that even when the
owner of the premises may not at all be aware of what is being done in his
premises, premises being rented out, in view of presumption clause, for an
offence committed by his tenant or anyone in his permissive possession, over
which he has no control, his premises would be confiscated. There may not be a
more draconian provision. A house may consist of several rooms occupied by
different members of the family. A particular member violates the law, the
family premises is up for confiscation. If two neighbours are on inimical
terms, one could easily plant liquor in the neighbours premises, the neighbour,
being unaware; still, by virtue of the presumption clause, not only he gets
convicted but his premises also get confiscated. These common day illustrations
can be multiplied to show the draconian effect of the law. The effect of these
provisions is virtually that we are converting the State into a Police State.
Citizens would always be living under a threat or, at least, a threat
perception of being easily implicated. That surely is not conducive and should
not be permitted.
8. Where
restrictions imposed upon the carrying on of a business are so stringent that
the business cannot in practice be carried on, the Court will regard the
imposition of restrictions as unreasonable.
9. Where
a licensee is stopped, not by reason of licensees’ default, but pursuant to any
policy of the State and, licences stands revoked prematurely in law, he is
entitled to two reliefs (i) the proportionate refund of the licence fee and
(ii) other compensation, which could only mean reasonable compensation for
investments made and liabilities incurred for exploitation of licence.
10. Curious
to note that toddy (Tari), which is available in abundance and tapped freely
without any licence or permit and sold freely not only in the rural areas but
urban areas and which has alcohol content, undisputedly matching or above beer,
has not been prohibited. It is freely available even today. There is no
notification barring it. Then to say, that on one hand toddy can be freely
tapped and sold unchecked, but foreign liquor or IMFL including beer cannot be
sold or consumed does not stand to reason, if the true object of the State was
to implement Article 47 of the Constitution. Further, State has not prohibited
manufacture of IMFL/beer. Apart from others, Article 14 would clearly be
violated here.
11.
11.
NOTE:
The Supreme Court (a Bench
comprising Justices AK Sikri and NV Ramana) on 30 September 2016 refused to entertain a PIL (filed by Ashwini Kumar Upadhyay) for banning or containing consumption of alcohol in the interest of
people’s health and quality of living while observing that “it is not for the
court to say liquor should be banned or not. It is for the government to decide”.
The petitioner persisted with his plea
as it was judiciary’s duty to protect people’s health by restraining them from
consuming liquor which was hazardous. The Bench remarked that “How do you say it is hazardous? It
poses problem only when taken in excess. Even medicines have side effects”. The
petitioner pleaded that studies had shown liquor was a health risk,
irrespective of the quantity consumed. Unconvinced, the Bench said studies had thrown up conflicting
findings and some had even suggested that red wine was good for health. It was
not for the judiciary to identify the correct studies. The PIL had maintained that judiciary
was supposed to protect the living standard as mandated under Articles 21
(right to quality life) and 47 (liquor prohibition) of the Constitution.
In the petition, he had
extensively cited instances of ruined families and people getting cancer and
various other life threatening ailments due to addiction to liquor. He had
provided news reports to highlight the need for enforcing at least part
prohibition. Article 47
prohibited consumption of alcohol except for medicinal purposes, he pleaded.
The state governments should be asked to create health awareness by declaring
the first Sunday of every month as Health Day for educating people about the
ill-effects of cigarettes, tobacco, liquor and other intoxicants. There should be a chapter in the school
curricula for educating children in the 6-14 age group on the health and
economic problems arising from substance abuse. (Source: The Tribune, 1 October
2016)
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