Amended liquor law in Bihar throws new posers

Following the passage of the Bihar Prohibition and Excise (amendment) Act, 2022, the general administration department of the state government on Saturday issued the gazette notification of the Governor’s order, notifying the list of officials designated as special executive magistrates in districts and subdivisions to deal with liquor-related cases, who would be vested with powers of the 2nd class judicial magistrate by the Patna high court.

Following the passage of the Bihar Prohibition and Excise (amendment) Act, 2022, the general administration department of the state government on Saturday issued the gazette notification of the Governor’s order, notifying the list of officials designated as special executive magistrates in districts and subdivisions to deal with liquor-related cases, who would be vested with powers of the 2nd class judicial magistrate by the Patna high court.

Smuggled liquor seized in Patna. (HT Photo)

However, the HC approval is yet to be received for the new appointees in the light of the amended Act and that has created a piquant situation. On Monday, some of the courts stopped granting custody of offenders to police since the the newly notified magistrates are yet to take charge. These include the court of additional district judge-cum-special court (excise) in Patna.

The government has notified 395 officers for appointment as special executive magistrates across the state in one go. According to the amendment under 2022 Act, the state government in consultation with the Patna high court is required to appoint these executive magistrates, who will enjoy the power of second-class judicial magistrates.

“It is a fact that the court has refused to grant remand, but there is provision for police to grant release on furnishing a bond in cases in which punishment is of less than seven-year imprisonment and the persons concerned would have to join the trial once it begins,” said assistant prosecution officer (APO) Surendra Singh.

Advocate general Lalit Kishore said that till the approval is received from the HC on the names notified, the old system will continue. “The list has been sent to the HC. Once the HC grants approval, the new system will start functioning,” he added.

However, sources in the Patna HC said the list was yet to be received till Monday.

Under the amendment, there is a provision for the first-time offenders to be released by the order of the special magistrate after depositing fine. In case the offender is not able to deposit the fine, he/she will be liable to face one-month simple imprisonment. The bill, however, does not give the accused right to be set free on payment of fine, as the executive magistrate could deny release on the basis of report by the police or excise officer.

The seizure of vehicles, containers or properties in connection with liquor smuggling could also be released on payment of fine prescribed by the state government, failing which the process for their confiscation would be initiated, the Act states. However, the final decision on the release of the seized items will be reserved for the executive magistrate.

The provision in the amended Act in case of a failure of a person to deposit fine will entail him sentence of one month simple imprisonment will take it into a grey area, as a person cannot be convicted or sentenced without trial. “Further, the discretion to release or not to release a person will create a situation of discrimination in the hands of the administration, which will again be prone to be challenged in the court of law,” said former additional solicitor general SD Sanjay.

“The Act has mandated prior consultation before designating the magistrates but the state government appears to have acted in a hurry without consultation with the High Court. It seems in violation of the amended law. It is expected that the clouds of uncertainty will be removed at the earliest,” he said.