Prabhu Prasad & Ors. v. The State Of Bihar, Through The Director General Of Police, Bihar, Patna & Ors.

Judgment

7. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : For the Respondent/s :

Mr. Arvind Kumar Tewary, Advocate Ms. Akanksha Verma, Advocate Mr. Vivek Prasad G.P.-7 Mr. Sanjay Kumar, AC to GP-7 ====================================================== CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT Date : 09-09-2025 Heard both sides.

2. In the instant writ application, petitioners seek following relief(s):- (i) For issuance of an appropriate writ, order or direction for quashing of First Information Report of Nautan Police Station Case No. 44 of 2017 dated 10.02.2017 instituted for the Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 alleged offences punishable under Section 35(c) of the Bihar Excise and Prohibition Act, 2016. (ii) For issuance of an appropriate writ, order or direction commanding and directing respondents to unseal the premises of the petitioner which has been sealed pursuant to institution of Nautan Police Station Case No. 44 of 2017 dated

10.02.2017 and restore its possession with all the articles stored therein. (iii) For restraining the respondent from taking coercive actions against the petitioner in the garb of regulating the business in exercise of power conferred under Bihar Prohibition and Excise Act, 2016 (in short of the Act). (iv) For any other relief or reliefs for which the petitioner found entitled too.

3. Briefly stated facts of the present case is that on 10.02.2017 as per direction of Excise Superintendent, Bettiah, informant alongwith other Excise officials conducted raid in a kiosk like shop situated on the west side near Patanjali shop in Nautan market and 150 bottles (100 ml each) which Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 seems like beer, were seized. It is alleged that during the course of raid, petitioner no. 2 was apprehended at the place of occurrence and he disclosed that petitioner no. 1 used to supply the alleged drink and petitioner no. 2 used to sell it.

4. Learned counsel for the petitioners has limited grievance towards quashing of FIR. Learned counsel for the petitioners has relied upon a similar and identical decision of this Hon’ble Court rendered in the case of M/S Smart India Marketing Proprietorship and Anr. Vs State of Bihar and Ors. (Criminal Writ Jurisdiction Case No. 627 of 2017 ) reported in 2018 (3) PLJR 165 and the said decision has been affirmed by the Hon’ble Supreme Court in S.L.P. No(s). 600 of 2018 (arising out of Cr.WJC. No. 627 of 2017) ( State of Bihar and Ors. Vs. M/S Smart India Marketing Proprietorship and Anr.).

5. Learned counsel for the petitioners further submits that the alleged seized product namely WFM 10,000 super strong is the duly registered brand under the Trade Mark Act, 1999. He further submits that the WFM Food Products, has got valid licence form the Deputy Director (F & VO), N.R. Ministry of Food Processing Industries, New Delhi since 1998. He further submits that even before the launch of said products by the company, the beverages were tested and found to be non- Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 alcoholic and the Government also got it tested and sample was sent by the Sub-Inspector Excise and vide report dated

14.02.2017 (Annexure 2) the product was found to be non- alcoholic. He further submits that the products of the WFM Food Products are marketed by Sri Nath Traders which appointed the firm M/S Siddhi Enterprises, Patna, as Marketer for the entire State of Bihar of the WFM products, including the beverages namely Super Strong 10,000/ thousand volt, kalahon golden 5 lacs, Kingfermer. He further submits that M/S Siddhi Enterprises is a registered Firm which has been duly issued certificate of Registration under section 92 of the Bihar Value added Tax Act 2005 and it has got license issued by the Department of Health and Family Welfare Govt. of Bihar under Food State Safety Authority under FSS Act 2006. He further submits that petitioner no.1 has been appointed by M/S Siddhi Enterprises G.P. Complex Patna Ad retailer for Bettiah and the petitioner no. 1 is marketing the said product in the name of M/S Priya Trader at Bettiah for which he has got VAT, Licence by the competent authority. The beverages were seized by the Excise Officials by treating the same as alcoholic drink merely on suspicion. He further submits that the seized article were examined and tested by the Excise Chemical analyst and after Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 chemical test only 0.2% Ethyl alcoholic content was found which cannot be treated as alcoholic drink and the seized article were non alcoholic and merely on the basis of suspicion that beverages are alcoholic, FIR has been registered against the petitioners. He further submits that M/S Sidhi Enterprises the principal distributor in Bihar and the Proprietor of the firm namely Smt. Kumari Punam wrote letter dated 18.01.2017 to the Excise Commissioner, Bihar to get the products examined at the Government Laboratory, as the product was non-alcoholic and the same was duly received on the same day in the office of the Excise Commissioner, (Annexure 3 to the instant writ application). He further submits that from different districts of Bihar the product namely WFM Super Strong 10,000 was seized by the Excise Officials from retailer and from all the places the product was sent to the Excise Chemical Analyst, Patna and the report was sent by the chemical analyst after test in Chemical Laboratory report sent to the Excise Official and in all such reports the Ethyl alcohol content was found to be 0.2% v/v to minimum of 0.4% v/v, (Annexure 4 of the instant writ application). He further submits that even if the entire prosecution story is taken into account, the goods of the petitioners are non alcoholic beverage and it does not fall under Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 the ambit of the Bihar Excise and Prohibition Act. Learned counsel for the petitioners submits that the facts of the Cr. WJC. No. 627 of 2017 (M/S Smart India Marketing Proprietorship and Anr. Vs. The State of Bihar & Ors.) is totally identical with the present case and in the light of the aforesaid decision, no offence as alleged in the FIR is made out against the petitioners and, hence, the FIR is liable to quashed. He further submits that samples of petitioners’ product, which was seized from different districts, were tested on different dates and the last test was conducted on 17.02.2017.

6. Learned counsel for the petitioners has produced BIS specification of carbonated beverages non- alcoholic beer and the same is not disputed by the learned counsel for the respondent. Hence, is being reproduce below:- Indian Standard CARBONATED BEVERAGES - NON-ALCOHOLIC BEER – SPECIFICATION 1 SCOPE This standard prescribes the requirements and methods of sampling and test for non- alcoholic beer. Amount of saccharin in the product shall not exceed by 100 mg/kg when determined by the method given in Annexure A of IS 2346 : 1973. 2 REFERENCES The Indian Standards listed in Annexure A are necessary adjuncts to this standard.

4.5 Freedom from Added Colouring Matter Non-alcoholic beer shall be free from any artificial colour except caramel. 3 TERMINOLOGY Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025

3.1 Non-Alcoholic Beer It is a beverage containing less than 0.5 percent ethyl alcohol by volume.

4.6 Freedom from Added Alcohol Non-alcoholic beer shall be free from any added alcohol. 4 REQUIREMENTS 4.1 General Non-alcoholic beer shall be the product alcoholic fermentation or otherwise of a mash in potable water of malted barley and hops or concentrate of hops with or without the addition of other malted or unmalted cereals or carbohydrate preparations.

4.2 Freedom from Harmful Ingredients Non-alcoholic beer shall be free from any ingredients injurious to health.

4.3 Preservatives Non-alcoholic beer contain preservatives permitted under the Prevention of Food Adulteration Rules, 1954.

4.4 Artificial Sweetners Non-alcoholic beer shall be free from artificial agents except saccharin.

4.7 Carbon Dioxide Content Non-alcoholic beer shall be charged with carbon dioxide before bottling.

4.8 Pasteurisation Bottled non-alcoholic beer effectively pasteurized, if required. Organoleptic

4.9 Requirements Non-alcoholic beer shall be and have characteristic colour, taste, bouquet and foam of its type.

4.10. Hygienic Conditions Non-alcoholic beer shall be manufactured in premises built and maintained under hygienic conditions in accordance with IS 5837: 1970

4.11 The material shall also conform to the requirements given in Table 1. Sl. No. Characteristic Requirement Method of test, Ref to (1) (2) (3) (4) (i) Ethyl alcohol content, 0.5 IS 3752:1988 percent by volume at 15/15C, Max (ii) pH 3.5 to 4.5 IS 3865: 1978 (iii) Carbon dioxide,v/v 2.5 to 3.0 IS 2346: 1973 Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 (iv) Residue on evaporation, percent(m/v) 5 to 10 IS 3752:1988 (v) Arsenic, mg/kg, Max 0.25 IS 6854:1973 (vi) Lead, mg/kg, Max 0.5 IS 6854:1973 (vii) Copper, mg/kg, Max 1.5 IS 6854:1973 (viii) Iron, mg/kg, Max 0.5 IS 6854:1973 (ix) Total plate count, per ml, Max 50 IS 5402:1969 (x) Co li form count, in 100 ml 0 IS 5401:1969 (xi) Yeast and mould count 2 IS 5403:1969

7. Learned counsel for the State submits that de- sealing order has been passed by the Co-ordinate Bench of this Court subject to certain conditions, as contained in Annexure B of the counter affidavit. No specific averments have been made by the learned counsel for the State in the counter affidavit with regard to the test conducted by the Excise Chemical Analyst, Patna.

8. It is necessary to discuss the relevant Laws which reads as under:-

9. Section 2(3), Section 2(4) and Section 2(6) of the Bihar Prohibition and Excise Act reads as under:- Section 2(3) of the Act defines the word “alcoholic” as follows:- “2(3) “alcoholic” means a solution or mixture containing alcohol and being of any strength and purity.” Section 2(4) of the Act defines the term “alcoholic beverage or portable liquor” as follows:- “2(4) “alcoholic beverage or portable liquor” means any beverage containing Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 alcohol in conformity with the BIS standard which may be intoxicating and is fit for human consumption.” Section 2(6) of the Act defines what is “BIS Standard” as follows:- “2(6) “BIS standards” means standard prescribed by Bureau of Indian Standards or the standards prescribed by any other Central Government constituted authority, under the relevant Act.”

10. It is well settled law that statutory provisions cannot be read in isolation to gather the aim and object of the legislature in bringing the Law in force. If the legislature would have intended to put complete prohibition even on non-alcoholic beverage as per the standard of BIS, there was no need to incorporate clarification in the form of definition of the word “alcoholic beverage or portable liquor” under Section 2(4) of the Act. Only definition under Section 2(3) of the Act was enough to fulfill the aforesaid desire.

11. On a careful consideration of the aforesaid statutory provision, it is evident that what the Act prohibits is the intoxicant or liquor containing alcohol of any strength and purity, as per the definition of "alcoholic" under Section 2(3) of the Act. Simultaneously, it does not prohibit sale etc. of the non- Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 alcoholic substances in conformity with the standard set by the BIS in view of the definition and clarification contained under Section 2(4)(6) of the Act.

12. In the present case, ethyl alcohol content is not more than 0.4%v/v and only 0.2 % v/v to 0.4% v/v has been found by the chemical analyst as per Annexure-4 series of the instant writ application. Hence, this Court is concerned only with alcoholic substance out of the different intoxicants. Moreover, the Penal provision must be specific with all clarity. In the present case, the Act specifies that alcoholic beverage or portable liquors should confirm the standard fixed by BIS. Thus, in my consideration, the petitioners were selling non-alcoholic substance, according to the BIS standard. Hence, it cannot be said that the petitioners have committed any offence under the Act or the FIR discloses any offence much less any cognizable offence said to be committed by the petitioners.

13. The law is settled that if the FIR does not disclose a cognizable offence, it would be fit to be quashed for the reason that its continuance would amount to an abuse of the process of the law and would occasion failure of justice.

14. Learned counsel for the respondent has no reason to dispute the Annexure - 4 series to the instant writ Patna High Court CR. WJC No.2396 of 2017 dt.09-09-2025 application as the same was tested by Excise Chemical Analyst, Bihar, Patna. The law is well settled that the offence is to be determined on the date of its commission and if on the date of seizure, the beverage was not containing any alcoholic substance, the offence was not committed as per the provisions of the Act.

15. In the light of the aforesaid facts and circumstances of the case and discussions made above, First Information Report of Nautan Police Station Case No. 44 of 2017 is fit to quashed and, accordingly, the same stands quashed. allowed.

16. Accordingly, the writ application stands

17. Pending Interlocutory Applications, if any, stands disposed of. (Alok Kumar Pandey, J) alok/- AFR/NAFR CAV DATE Uploading Date Transmission Date AFR N/A 16.09.2025. 16.09.2025.