Patna HC Upholds Cognizance in Scotch Whisky Seizure Case, Rejects Section 73(e) Challenge

Justice Praveen Kumar dismissed a challenge to cognizance taken for illicit liquor transport, holding that Section 73(e) of the Bihar Prohibition and Excise Act is directory, not mandatory.

The High Court of Judicature at Patna has dismissed a petition challenging an order taking cognizance in a Bihar excise matter arising from the seizure of six one-litre bottles of foreign liquor at Patna Junction railway station. Justice Praveen Kumar, sitting singly, held that the use of the word “may” in Section 73(e) of the Bihar Prohibition and Excise Act, 2016 makes the provision directory rather than mandatory, and that a delayed charge-sheet does not vitiate the trial or render cognizance bad in law. The petitioner, Akash Kumar, had urged that the search and seizure was conducted in violation of both the Excise Act and Section 100 of the Code of Criminal Procedure. The court found prima facie material against the petitioner sufficient to sustain the cognizance and declined to interfere.

The Seizure at Patna Junction

On 27 February 2018, at around 06:30 hours, Awadhesh Kumar Sharma, the informant, was on patrolling duty at Patna Junction railway platforms along with other police personnel. At approximately 07:00 hours, the Duronto Express arrived and halted at Platform No. 3. As passengers were deboarding, one individual was observed moving suspiciously towards the central foot-over-bridge staircase while carrying a red bag. When the person noticed the police party, he attempted to flee. He was chased and apprehended.

On being questioned about the contents of the red bag, the individual — later identified as the petitioner, Akash Kumar — failed to provide a satisfactory explanation. A search was then conducted in the presence of two independent seizure witnesses, Aditya Paswan and Raj Kumar Paswan. The search led to the recovery of six sealed one-litre bottles of Scotch whisky: two bottles of 100 Pipers Deluxe Blended Scotch Whisky, two bottles of VAT 69 Blended Scotch Whisky, and two bottles of Johnnie Walker Red Label Blended Scotch Whisky.

A seizure list was prepared on the spot and signed by the petitioner as well as both independent witnesses. A copy was handed to the petitioner. Upon interrogation, the petitioner disclosed that he had brought the liquor from Shalimar Railway Station for delivery at Patna Junction. He was formally arrested thereafter. Rail Patna Jn. P.S. Case No. 61 of 2018 was registered, and cognizance was taken on 27 March 2018 for offences under Section 273 of the Indian Penal Code and Section 30(a) of the Bihar Excise Amendment Act.

Arguments Raised Before the High Court

Counsel for the petitioner, Mr. Anil Kumar, advanced several grounds before Justice Praveen Kumar. The primary argument was that the search and seizure violated Section 73(e) of the Bihar Prohibition and Excise Act, 2016. The provision was amended by Section 2 of the Bihar Prohibition and Excise Amendment and Validation Act, 2020, which substituted the word “Sub Inspector” with “Assistant Sub Inspector”, with effect from 2 October 2016. It was submitted that since the search and seizure was carried out by an Assistant Sub Inspector of police, the procedure prescribed under Section 73(e), as applicable to the relevant date, was not followed, and the entire case against the petitioner therefore fell away.

Separately, it was argued that the search and seizure was also in violation of Section 100 of the Code of Criminal Procedure. Counsel pointed to alleged inconsistencies in the statements of the seizure witnesses and contended that the prosecution case did not inspire confidence. It was further urged that the charge-sheet was filed seven days beyond the statutory period, rendering the cognizance bad in law.

In support of the Section 73(e) argument, counsel relied on two Division Bench judgments of the Patna High Court — one dated 14 January 2020 and another dated 24 January 2020 — passed in Marsingh Sahni v. State of Bihar and Ors. (CWJC No. 382 of 2020) and Ram Kishor Singh v. State of Bihar and Ors. (CWJC No. 18067 of 2019). The State, represented by Mr. Sucheta Yadav, APP, opposed the petition.

The Court’s Reasoning on Section 73(e)

Justice Praveen Kumar examined Section 73(e) of the Bihar Prohibition and Excise Act, 2016. The court observed that the provision uses the word “may” rather than “shall”. That use of “may” was retained even after the amendment effected by Section 2 of the Bihar Prohibition and Excise Amendment and Validation Act, 2020. Because the legislature did not substitute a mandatory form of the provision, the court held that Section 73(e) is directory in character, not mandatory. Non-compliance with a directory provision, the court reasoned, does not vitiate the proceedings or the cognizance taken on the basis of the investigation.

On the Division Bench judgments cited by the petitioner, Justice Praveen Kumar found that those decisions were concerned with the release of vehicles and that the Division Bench had expressly stated it was not expressing any opinion on the merits of the respective cases. The precedents were therefore of no assistance on the question of whether the cognizance could be sustained.

On the argument of witness inconsistencies, the court held that discrepancies in witness statements are matters of defence, to be raised and considered at the appropriate stage of trial. They could not, at the stage of challenging cognizance, form a basis for quashing.

The court addressed the argument based on State of Haryana v. Bhajanlal, reported in 1992 Supp (1) SCC 335, in the context of the mala fide submission. Justice Praveen Kumar observed that any such contention could only be considered at the time of the defence, given that the recovery was made from the conscious possession of the petitioner.

Charge-Sheet Delay and Its Effect on Cognizance

The petitioner had submitted that the charge-sheet was filed seven days beyond the statutory period and that this rendered the cognizance bad in law. The court rejected this contention, holding that a delay in filing the charge-sheet beyond the statutory period does not vitiate the trial, and cognizance cannot be held to be bad in law or barred by any existing law on that ground alone.

Outcome

Justice Praveen Kumar found prima facie material against the petitioner sufficient to constitute the offences for which cognizance had been taken. The impugned order taking cognizance dated 27 March 2018 was held to require no interference. Criminal Miscellaneous No. 60367 of 2018 was dismissed as devoid of merit on 17 August 2026.