Earlier this year, following several hooch tragedies and subsequent uproar over deaths, the Nitish Kumar government’s decision to relent on prohibition for compensation to the kin of victims of hooch tragedies, a clear departure from its earlier stand, was also seen as a major climb down forced by difficult circumstances in the election year and the potential of the Opposition parties such as Bharatiya Janata Party, Lok Janshakti Party (Ramvilas) and Upendra Kushwaha’s Rashtriya Lok Janata Dal (RJLD) cashing in on people's sentiments.

Last year, the government had given relaxation by scaling down the penal provisions and introducing financial penalties for first-time offenders through an amendment in the Act. The move came after the Supreme Court dismissed the state’s batch of appeals challenging the grant of anticipatory and regular bails to the accused under the liquor law, saying “the prosecution of the case should be made in all earnestness to secure conviction and punishment”. The conviction rate has been abysmal in prohibition cases and the matters linger for years.

In the last couple of years, after the installation of the Grand Alliance (GA) government, the pace of relaxation has picked up in the state, prompting a relentless attack on the Nitish Kumar government by the opposition BJP as well as GA constituents like Hindustani Awam Morcha for a thorough review. Even Congress has been advocating a review. The BJP has gone a step further demanding the withdrawal of over four lakh cases lodged under the law since its imposition to lessen the burden on courts and spare the poor.

As the toll in April's hooch tragedy in Bihar mounted to 31, BJP leader Sushil Modi demanded the withdrawal of over 3.61 lakh FIRs have been registered under the prohibition law since 2016.

“The continued relaxation in prohibition law indicates the government’s failure to properly implement it. The government should admit that prohibition law has become increasingly ineffective and adopt the Gujarat model to give more relaxation and allow permits to tourists and those who need it to survive on medical grounds. The withdrawal of over four lakh cases will give respite to the poor, downtrodden and Dalits, who mostly bore the brunt due to the inept handling of the prohibition law, which allowed the mafia went scot free to develop a parallel economy,” said senior BJP leader and Rajya Sabha member Sushil Kumar Modi in April after Nitish government relented from its stance to announce ₹4-lakh compensation to kin of hooch tragedy victims.

Harsh court observations

The latest relaxation also has its roots in the July 2021 order of the Patna High Court (HC), which directed that all proceedings related to confiscation of property/vehicles under the Act must positively be initiated or concluded within a period of 90 days from the date of appearance of the parties concerned. “The appeal/revision, if any, be also decided within a period of 30 days from the date of initiation, failing which the “things” (vehicle/property/ etc.) shall be deemed to have been released in terms of several orders passed by this Court in the past,” the bench of the then Chief Justice Sanjay Karol and Justice S Kumar had observed.

The court order came on a petition filed by Abhishek Kumar, who prayed for a direction to release his Swift car seized and kept in the premises of Baikunthpur police station in Gopalganj under the open sky. This is the story after the seizure of a large number of vehicles, ranging from trucks, tankers, cars, pickup vans, and ambulances to motorcycles, which were caught carrying liquor. In most police stations of the state, they are left to rot while the cases linger. The court had observed that the “litigants were forced to approach the court due to delay in completing the proceedings”.

In an earlier order in August 2021, the court had directed the state to provisionally release the vehicle/property, subject to initiation/conclusion/finalisation of the confiscatory proceedings. It even threatened to initiate proceedings for contempt under the provisions of the Contempt of Courts Act and directed the Chief Secretary to evolve a mechanism to ensure that the provisions of the Act were implemented in letter and spirit.

In yet another setback to the state government, the Patna HC last month set aside the entire disciplinary proceeding against a police inspector, Ajay Kumar, who was put under suspension on the charge of negligence after liquor was recovered from a house under the jurisdiction of his area, on the premise that it was done on “assumption”.

Setting aside the impugned orders, the bench of Justice Rajeev Ranjan Prasad instructed the Director General of Police (DGP) to issue necessary consequential orders within a period of 30 days. Referring to the DGP letter, dated November 24, 2020, to all the Senior Superintendent of Police and Superintendent of Police (Rail), Bihar, the court said that “on a bare perusal of the letter it would appear that in case of recovery of illicit liquor, the concerned Station House officer and Chowkidar will be deemed guilty for not collecting the information and taking necessary action and they will be proceeded against for their failure”.

“The letter of suspension of the inspector assumes and pre-judges the guilt against the station house officer (SHO) and chowkidar even before framing of charge and conduct of an independent enquiry. This has no sanction of law. Because of this stipulation in this case the whole proceeding right from framing of charge has been influenced and a serious prejudice has been caused to the petitioner,” the court observed, adding that “such presumption of guilt has no sanction of law and the same is violative of Article 21 of the Constitution of India.”

In the wake of continued smuggling of liquor and hooch tragedies, which led to verbal attacks on the police from both within the government as well as the Opposition for being hand in glove with the liquor mafia, the government had made the Station House Officers and chowkidars responsible for the areas falling under their jurisdiction.

The Bihar Prohibition and Excise Act, 2016 prohibits the manufacture, storage, distribution, transportation, possession, sale, purchase and consumption of any intoxicant or liquor. In addition to the penalty imposed for committing such an offence, Section 56 of the Act lays down the procedure for confiscation of “things” used in the commission of such an offence.

Last year, the state cabinet had given its nod to the Bihar Prohibition and Excise Rules, 2021, for reducing the growing number of litigations by vesting judicial powers in special executive magistrates after HC’s approval. The court did not give the approval. Besides, it also made provision for permission to distilleries in the state for manufacturing extra neutral alcohol (ENA) and ethanol. Bihar last year became the first state in the country to have its Ethanol Production Promotion Policy, 2021, which promotes new standalone ethanol manufacturing units by providing them additional capital subsidy at 15% of the cost of plant and machinery up to a maximum of ₹5 crore.

On the latest relief in prohibition law, the state’s Advocate General P K Shahi said that the court observations had clearly indicated the need for applying the same yardsticks for vehicles as was applicable to houses and land in case of seizure of vehicles with illicit liquor in Bihar, which is a dry state. “There was no discretion to confiscatory authority in the case of vehicles, which has now been introduced. The complicity of the owner will also be decided by the authority based on the evidence. It is a fact that courts are overloaded with cases, which have multiplied in the last 5-6 years, as the judicial processes get delayed due to a number of factors,” he added.

Former additional solicitor general and senior advocate S D Sanjay said that there had been a complete summersault in the stand of Nitish Kumar on the policy of prohibition in Bihar and it reflected the admission of its implementation failure.

“Now it appears that his restrictions are completely fading out because of three reasons, the prime being the court verdicts and observations. The other two reasons may be the pressure of the Rashtriya Janata Dal, which has also been critical of faulty implementation when in Opposition, and the Opposition hue and cry due to hooch tragedies and deaths. Now he has come under acute pressure to change his stand and this trend may continue to ultimately pave the way to lift prohibition by 2025” he added.

Too many challenges

The Nitish Kumar government’s decision to relent on prohibition with a slew of measures one after another is seen as a clear departure from his earlier stand, as he has been very particular about the success of prohibition, which he attributes to the call of women of the state during the 2015 Assembly polls.

Various studies carried out at his behest by the Chanakya National Law University (CNLU) also gave a thumbs up to prohibition as a move that is overwhelmingly supported by the women for returning familial bliss and social order.

Kumar also did not hesitate in slamming the Opposition for demanding compensation to the kin of victims of the Saran hooch tragedy and ruled it out, but now he has a change of heart due to the pressure from within as well as outside in the election year due to the prospect of half-baked prohibition emerging as a big stumbling block for the GA.

“Nitish Kumar has been made to realise that there can be no defence to deaths due to hooch tragedies and it could be counter-productive. He got a feeling that he cannot get away with blaming victims for long. His Grand Alliance (GA) partners, including the RJD and Congress, have also been consistently raising demand for review, which the CM dismissed earlier, but no more. It means he has started feeling the pressure. He may not like it, but he has to swallow it. The court orders have also not been favouring the way prohibition is going on in the state. Besides, it is a fact that it has created room for a parallel economy due to unbridled smuggling despite the best efforts of the government and deployment of drones and helicopters to detect it,” said social analyst Prof NK Choudhary.

Following the passage of the Bihar Prohibition and Excise (Amendment) Act, 2022, the Bihar government issued the gazette notification, notifying the list of officials designated as special executive magistrates in districts and subdivisions to deal with liquor-related cases upon vesting of power of the 2nd class judicial magistrate by the Patna HC.

However, the HC refused to vest judicial powers in the special executive magistrates and the amendment failed to have any impact in reducing the court cases.

Advocate General PK Shahi said that it was no surprise, as the judicial powers and executive powers had been separated by the apex court over four decades ago on the recommendation of an experts’ panel and law commission report. “It was then clearly laid down that the power to grant bail should not be vested in the executive magistrates. The separation of power was a conscious decision and in that light, the HC just went by the established norms,” he added.

Between 2018 and 2021 (up to May 31) the cumulative figure of excise cases in the Patna HC stood at 57159, which included 32909 for regular bail, 23495 for anticipatory bail and 314 for quashing, among others. The numbers went further up due to disruptions caused by the pandemic, vacancies in the court and further additions fO cases.

In 2019, alarmed by the growing pendency, the Patna HC asked the state government to present a plan for how it plans to dispose of these cases related to excise. Though special courts were mandated in the new law for the trial of liquor-related cases, they could not be made fully functional.

The growing pendency and resultant burden also led to strong observations from the former chief justice of India NV Ramana. “You know how much impact this law (The Bihar Prohibition and Excise Act, 2016 ) has created in the working of the Patna HC and it is taking one year to get a matter listed there and all the courts are choked with the liquor bail matters,” the then chief justice Ramana had said during a hearing.

The Patna HC had also observed last year that “the lives of citizens of the State is risked by the failure of the state authorities to implement complete prohibition in Bihar to safeguard the health, life and liberty of the people at large and their confidence”, which has also led to overcrowding of the already overburdened judiciary and a sharp increase in drug addiction and consumption of deadlier adulterated liquor.

“After the liquor ban was imposed, many started looking for substitutes. Drugs being on the supply route made an easy entry into the state amid the lack of vigilance. The addiction to cheaper medicinal drugs is a more spurious choice according to experts. The data shows that before 2015, there was hardly any case related to drugs, but post-2015, the same has alarmingly surged. What is more worrying trend is that most addicts are as young as 10 years and below 25 years of age. The statistics show that the addiction to ganja, charas and bhang has shot up post-prohibition. The state has failed to stop the trafficking of drugs throughout Bihar,” said the bench of Justice Purnendu Singh, while hearing a bail petition in October, 2022.

As per the statistics of the Bihar police headquarters, 314 FIRs were lodged against 468 accused in 2015, but the number increased significantly after 2016 when prohibition was imposed. In 2017, Bihar police registered 563 FIRs against 999 accused and arrested 535 persons. In 2018, the police lodged 360 FIRs against 598 persons and arrested 441, while in 2019 621 FIRs registered against 1137 people out of which 490 were arrested 490.

In 2020, the police lodged 701 FIRs against 1381 people and arrested 1106 of them, which again increased in 2021 to 973 FIRs against 1870 accused and 1410 arrests, and in 2022 to 1290 FIRs against 2197 people and 2031 arrests.

The ADG (headquarters) JS Gangwar said that till April 2023, the Bihar police registered 150 FIRs against 239 people and nabbed 237 of them. “The police seized 1.16 lakh kgs ganja, 1597 kgs Charas, 60 kgs Heroin and 300 kgs Afim till April 2023 this year,” he added.

Former director of the AN Sinha Institute of Social Studies, DM Diwakar said that the relaxations in the prohibition law were a pointer that Nitish Kumar was ready to accommodate the alliance partners, which were feeling threatened by the reverse impact of prohibition due to hooch tragedies, smuggling and framing of poor persons.

“Nobody can question prohibition, as it was a unanimous decision, but any policy is as good as its implementation. Prohibition was always going to be a challenge and Nitish Kumar knew it. Yet he went for it. But in politics, even good decisions can have a bad impact if not implemented well,” he added.