Md. Naseem Akhtar vs The State of Bihar

Anand Prasad Sinha, J.—This application is directed against the conviction and sentencepassed against the petitioner for an offence u/s 47 of the Bihar and Orissa Excise Act in Trial No. 163 of 1980 by judgment dated 23rd April, 1980, sentencing the petitioner to undergo rigorous imprisonment for one year. On appeal in Criminal Appeal No. 98/80 / 40/81 the conviction and sentence have remained unaltered.

The prosecution case, briefly stated, is that on 14th July, 1973, officers of the excise department on receiving confidential information had raided the house premises of the petitioner and had detected that a huge quantity of excisable goods in the nature of denatured spirit, Nepali gunja, jungali bhang and also certain materials for preparation of illicit liquor had been recovered and all the articles had been seized and a seizure list had been prepared.

On the basis of the evidence adduced in this case the petitioner has been found guilty, and accordingly convicted and sentenced, as stated above.

So far as the fact of evidence is concerned, absolutely there is no material to indicate that any ground for interference in the judgment has been made out but a serious legal lacuna has occurred rendering the order of conviction and sentence not in accordance with law.

It will appear from Section 96 of the Bihar Excise Act that a prosecution has to be instituted within a period of six months and if not done, a sanction of the State Government is necessary. The term institution of prosecution has been stated to be the date on which the cognizance has been taken. In the instant case cognizance has been taken on 11th March, 1974. Naturally, the prosecution has been initiated beyond the period of six months. There is nothing in the record to show that sanction of the State Government has been obtained. Any prosecution not initiated within a period of six months and in the absence of sanction order has held to be bad in law and that is supported by a decision in Bishwanath Mandal v. The State 1979 BBC J 169.

Under the circumstances, the petition is allowed, the conviction and sentence passed by the impugned judgment are hereby set aside. The petitioner stands accuitted and shall be released from the liability of the bail bond forthwith.