IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38114 of 2009 Sanjeev Kumar @ Sanjeev Kumar Chaudhary, son of Kameshwar Chaudhary, village Mahanth Maniyari, PS Maniyari, district Muzaffarpur – petitioner. Vs. 1. The State of Bihar, 2. Animesh Chandra Gyani, S.I., son of not known, PS Maniyari, District Muzaffarpur – opp. parties. 5 16.4.2010 Heard learned counsel for the parties. This application has been filed for quashing the order, dated 6.4.2009 passed by the Subdivisional Judicial Magistrate, Muzaffarpur in G.R. No. 1838/2007, Tr. No. 4606/2009 in connection with Maniyari PS Case No. 105/2007. The facts are that a notification vide memo no.1055, dated 12.10.2007 was issued by the Excise Superintendent in which it has been stated that all liquor shops shall remain close on 14.10.2007 on account of Id-ul-Fitr. It has also been certified that in case the festival fell on 13.10.2007, then the shops shall remain closed on 13.10.2007. The petitioner’s shop remained closed on 13.10.2007 and was opened on 14.10.2007 and as such a case has been instituted under section 47A of the Excise Act by S.I. of Maniyari police station. Two counter affidavits have been filed, one by Excise Department and another by the State. The counter affidavit filed on behalf of Excise Department reveals that the petitioner’s shop was open at 6 P.M. on 14.10.2007 but there was no violation of prohibitory order as no liquor was sold from the shop which would be apparent from the register of 14.10.2007 and as such no offence is made out 2 under section 47A of the Excise Act. The counter affidavit filed on behalf of the State, on the other hand, reveal that the shop was open on 14.10.2007 in direct violation of the notification of the State Government. There is no doubt about the fact that the petitioner and other liquor shop dealers were not permitted to sell liquor on the day of Id-ul-Fitr. Apparently the notification was issued vide memo no.1055, dated 12.10.2007 which has been filed separately in this application. The question is that if there was no violation of provisions of section 47A of the Excise Act on 13.10.2007, on the day of Id-ul-Fitr and subsequently if the petitioner had opened his shop on 14.10.2007 but not for the purpose of selling liquor, could it be said that it is violation of the notification issued by the Excise Superintendent. The Excise Department has not found any illegality after inspecting the shop and the register which would indicate that the petitioner had not violated the notification of the Excise Superintendent. If there is no violation of the provisions of the Excise Act, I do not think that the order, dated 6.4.2009 is justified. The impugned order is accordingly quashed and this application is allowed. haque (Sheema Ali Khan, J.)