IN A setback to the Bihar government, the Patna High Court on Friday quashed the government notification banning the consumption, storage and sale of all types of liquor in the state. The court held that the penal provisions were “unreasonable and draconian” and “cannot be justified in a civilised society”.
A division bench of the court, comprising Chief Justice Iqbal Ahmed Ansari and Justice Navaniti Prasad Singh, held that Section 19(4) of the Bihar Excise (Amendment) Act, 2016 was “ultra vires and unenforceable”.
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“In my opinion, Section 19(4) of the Bihar Excise Act, 1915, as amended with effect from 01.04.2016 (passed by the state legislatures on 31.03.2016) is ultra vires the Constitution and unenforceable,” said the court, which was hearing a bunch of petitions filed by various parties including manufacturers and dealers of Indian Made Foreign Liquor (IMFL).
“The impugned notification, dated 05.04.2016, issued by the state under Section 19(4) of the said amended Act is also ultra vires the Constitution and, consequently, unenforceable,” it said.
“The punishment as prescribed by the recent amendment to the Act with effect from 01.04.2016, on all three counts, i.e. personal punishments, both physical and monetary, punishment of confiscation of premises, and punishment to the community, are quite unreasonable and draconian and cannot be justified in a civilised society. It may be justified in a police state, which surely we are not,” said the court in its 142-page order.
“When it comes to the Bihar Prohibition Act, 1938, which deals with liquor, which… taken in small quantities in a civilised manner is not injurious, the punishments are balanced with the social needs. But when we come to the amended provisions of the Bihar Excise Act, 2015, the provisions are clearly draconian and in excess of the balance that needs to be maintained,” said the court.
“The presumption of innocence is totally taken away and the burden of proof thereof is put on the accused… For any reason, if he fails to prove his innocence, he would straightway be liable to punishment, which would be minimum 10 years imprisonment with astronomical fine, and would lose his entire property by virtue of confiscation,” it said.
The court order effectively means that the liquor ban stands lifted till the state government notifies its latest amended Act — the Bihar Prohibition and Excise Act, 2016. The court did not make any reference to this amended Act, which has been cleared by the Bihar Governor.
The state government claimed the order would not have much bearing as it prepares to notify its amended Act from October. “Now that the court order has come, the government will study it and use its discretion if any changes are to be incorporated,” said JD(U) spokesperson K C Tyagi. “Our government is committed to banning liquor,” he said.
Reacting to the court order, BJP legislature party leader Sushil Kumar Modi said: “We are with the government when it comes to imposing a liquor ban. But we are against the provisions of disproportionate punishment and giving unbridled powers to police”.