Bihar
While setting aside the punishment of demotion imposed on an inspector on the ground of negligence in implementing the Excise Prohibition Act, the Patna High Court said that though the Act was passed with the objective of improving public health, yet “for a number of reasons it Standing on the wrong side of history”.
In doing so, the court said that the prohibition law in the state had actually promoted unauthorized trade in liquor and other prohibited items and that officials of the police, excise, tax and transport departments “liked” prohibition because for them it meant ” Big earning”.
The court was hearing the plea of an inspector, who was punished by demotion after “illicit foreign liquor” worth Rs 4 lakh was recovered from a warehouse in a raid conducted by the Excise Department, which was located within the police station under the jurisdiction of the petitioner. Was situated near. He was accused of negligence in implementing the Excise Prohibition Act, which is a violation of Rule 3(1) of the Government Official Conduct Rules.
Justice Purnendu Singh said in his order on October 29, “
I deem it appropriate to record here that Article 47 of the Constitution of India states that the duty of the State is to raise the standard of living and improve public health on a large scale and thus the State Government has enacted the Bihar Prohibition and Excise Act with the said objective in mind. Act, 2016, but for several reasons, it finds itself on the wrong side of history.
Prohibition has actually given rise to unauthorized trade in liquor and other prohibited goods. This stringent provision has become useful for the police, who are working closely with smugglers. New methods have been developed to deceive law enforcement agencies so that contraband can be transported and transported. Not only police officers, excise officers, but also officials of the state tax department and transport department like prohibition, for them it means big money. ,
The court further said that the number of cases registered against kingpins/syndicate operators is “few” compared to the “huge number” of cases registered against “the poor drinkers and victims of the illicit liquor tragedy”. It was also emphasized that most of the people from the poor section of the state, who are facing the brunt of Bihar Prohibition and Excise Act, have been reduced to living as daily wage laborers who are the only earning members of their families.
The court said that in the present case the investigating officer “deliberately” did not corroborate the allegations made in the prosecution's case with any legal document and such lapses were left. The court said that this “gives immunity to the mafia in the absence of evidence by not conducting search, seizure and investigation as per law.”
The order was passed in a writ petition filed by a person posted as a police inspector in a police station in Patna. The 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 raid, which led to the recovery of “illicit foreign liquor” worth Rs 4 lakh.
The petitioner lodged an FIR against the accused and prepared a seizure list. The allegation that the petitioner's involvement in the sale of illicit liquor along with a watchman cannot be ruled out as the warehouse where the raid was conducted is just 500 meters away from the police station is stated in the letter dated November 2020. There is a violation of the instructions given.
After this, on February 1, 2021, the Director General of Police of Bihar suspended him. The petitioner was served a charge sheet dated February 6, 2021. Subsequently, on February 9, 2021, the Inspector General of Police, Central Range, Patna issued a show cause notice to the petitioner as to why he should not be held guilty of negligence in enforcing the Excise Prohibition Act, which violates the Government Official Conduct Rules, 1976. There is a violation of -3(1).
The petitioner submitted its detailed show cause reply in March 2021 denying all the allegations. However, the investigating officer, after conducting the investigation, recommended the “major punishment” of dismissal of the petitioner. Subsequently, the disciplinary authority found the petitioner guilty of the charges and passed a penal order demoting him to the basic pay scale of Police Sub Inspector for five years on April 13, 2022, against which he approached the High Court.
The court was considering whether the disciplinary authority – which has to take decisions as per the procedure prescribed under the Bihar Government Servants (Classification, Control and Appeal) Rules 2005 – should have been informed about the November 2020 letter and the DGP even before initiating departmental proceedings. can be said to be affected by the suspension order of the Supreme Court, which creates a presumption of guilt even before the framing of charges and an opportunity of being heard after the award, which is said to be violative of the principles of natural justice and Article 21 of the Constitution of India. Was.
The High Court, through the pleadings and the material on record, said that the charge memorandum shows that it has been prepared on the instructions of the Director General of Police, Bihar, who in his letter dated February 1, 2021, to the Senior Superintendent of Police, Patna in November The direction was given citing the letter of 2020, which said that in case of recovery of illicit liquor from the territorial jurisdiction of any police station, the concerned Station House Officer (SHO) will be considered guilty and strict action will be taken against him. Needed.
The court said, “In compliance with 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, as a result of which the disciplinary authority Penal order was passed by.'The Court then referred to the decisions of the Supreme Court and the High Court on post-judgment hearing and said, “I also find that the post-judgment hearing is conducted with a narrow mindedness and The fact is that it is harmful in nature and if it is done with a preconceived notion of awarding punishment then it would be a formality and hence the post-judgment hearing would not be that effective.”
It further underlined that the basic possibility of natural justice “requires a pre-judgment hearing and not a post-judgment hearing.” , and said that if the authorities have decided to take action before initiating departmental proceedings, then allowing a hearing after the decision would be a mere “empty formality, which is in violation of the principle of natural justice.” In the present case, the Court said that the Director General of Police of Patna High Court had “with a premeditated mind” observed that strict disciplinary action was required against the petitioner as per the letter dated November 2020.
The Court held that the result was that the disciplinary authority passed a penal order against the petitioner “who with a premeditated mind decided to impose the penal order in compliance with the letter of the Director General of Police”. The Court found that the facts show that That the statements of the witnesses were also not recorded in the prescribed manner.
Subsequently setting aside the suspension and fine imposed on the petitioner, the High Court said, “Considering the facts and circumstances of the present case and the law laid down by the Supreme Court referred to in the above paragraphs, I find that even if the petitioner is liable to be charged under the CCA Rules , 2005 and the petitioner was given an opportunity of being heard, in view of the conditions/directions contained in the Director General of Police's letter No. 63 (01 Implementation) 2019-20-1296/Excise Prohibition dated 24.11.2020, In my opinion, the authorities had pre-determined to impose penalty on the petitioner and proceeded to conduct a quasi-judicial inquiry without giving an opportunity of being heard after the decision, which violates the rule of natural justice and the principle of fair play. It's the opposite”.
The Court emphasized that the officer attending the post-decision hearing would “naturally proceed with a closed mind” and therefore there is hardly any possibility of “proper consideration” being given to the representation on such a post-decision occasion. Disposing of the petition, the court said that in view of the “recorded evidence”, if the disciplinary authority feels that disciplinary action should be taken against the petitioner, then in that circumstance, “the petitioner shall be punished in the light of the law laid down by the Supreme Court.” It is necessary to suspend the case for fresh proceedings.”
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