Patna High Court
Mohan Sah vs The State Of Bihar on 22 April, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2480 of 2022
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Mohan Sah, Son of Parikchhan Sah, Resident of Village-Parihar, P.S.-Parihar,
District-Sitamarhi.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Commissioner, Excise Department, Govt. of Bihar, Patna.
3. The District Magistrate, Sitamarhi.
4. The Superintendent of Police, Sitamarhi.
5. The Officer-in-Charge, Bela, Police Station-Sitamarhi.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Mohan Kumar Singh, Advocate
For the Respondent/s : Mr.Kumar Manish (S.C. 5)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
(The proceedings of the Court are being conducted through Video Conferencing and the
Advocates joined the proceedings through Video Conferencing from their residence.)
Date : 22-04-2022
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
"(I) For the issuance of an appropriate writ/writs
or direction in the nature of Certiorari to quash and set aside
the order dated 23.02.2021 passed by Respondent
Commissioner, Excise, Bihar, Patna in Excise Appeal Case
No. 117/2021 Mohan Sah Versus Collector, Sitamarhi,
whereby and where under the respondent has been pleased to
dismiss the appeal filed under Excise Act. The appeal has
Patna High Court CWJC No.2480 of 2022 dt.22-04-2022
been dismissed on the basis of merely on lodging an FIR in
the said FIR the trial is still going on.
(II) Further for issuance of an appropriate writ to
quash and set aside the order dated 20.03.2020 passed by
learned Collector, Sitamarhi in Confiscation Case No.
1067/2019 filed by petitioner for release of Pickup Van
having Registration No. BR-06GD-6182.
The aforesaid pickup van derived by the driver,
if driver commit any wrong, he should suffer the pick van
should released, its evidentiary value decrease day to day
value. The respondent without considering section 56 of
Excise Act and without record a positive finding as to whether
the pickup van was used for transportation of liquor, merely
lodging an FIR they dismiss the appeal.
(III) Further for a direction to the respondents
not to auction the seized and confiscated pickup van till
pendency of instant writ petition."
Petitioner has approached this Court without availing
the statutory remedy of revision against the impugned appellate
order, as such, liberty is granted to petitioner to file revision
against the appellate order before the Revisional Authority, and
if any such Revision is filed within 4 weeks, then the Revisional
Authority shall decide the revision petition preferably within 8
weeks from the date of its filing on its own merit.
During pendency of revision petition, confiscated
vehicle/property shall not be auction sold, if not already auction
sold.
OR
It is submitted by learned counsel for the State that
during pendency of writ petition, there has been amendment in
Patna High Court CWJC No.2480 of 2022 dt.22-04-2022
the Bihar Prohibition and Excise Rules, 2021 and a new Rule
12(A) has been inserted which reads as under:-
"12. A. Release of Vehicles, Conveyance etc. on
payment of Penalty:- (1) If any vehicles, conveyance,
vessel, animal etc. has been seized by any police or excise
officer under the Act, then in terms of section -57B(1) of
the Act, the Collector or an officer authorized by him upon
receipt of an application in Form IV by the owner of the
said conveyance or vehicle etc., may release the said
conveyance or vehicle upon payment of such penalty as
may be ordered by the Collector or the officer authorized
by him.
Provided, where it is not possible to ascertain the
owner of the vehicle or the owner is not coming to claim
the vehicle, the Collector or the officer authorized by him,
after waiting for 15 days from the date of seizure, shall
proceed to confiscate and auction the vehicle as per the
provisions of the Act.
(2) The penalty shall be 50% of the latest insured
value of vehicle/conveyance. The insured value is the value
of the vehicle as assessed by the insurance company.
Where, the insured value is not available or the Collector or
the officer authorized by him has reason to believe that the
vehicle is undervalued, he shall get the valuation done by
the District Transport Officer and 50% of that value shall be
the amount of penalty.
In any case, the Collector shall not wait beyond 15
days from the date of seizure and if during this period, the
accused/owner does not pay up the penalty, he shall
proceed with the confiscation/auction.
(3)Notwithstanding above, if on a report by police
officer or excise officer, the Collector or the officer
authorized by him is satisfied that releasing the vehicle or
conveyance shall not be in the public interest, he shall
Patna High Court CWJC No.2480 of 2022 dt.22-04-2022
proceed ahead with the confiscation of the said vehicle or
conveyance and its subsequent auction / disposal.
(4) Where the conveyance is such that its
valuation / insurance is not possible, the Collector or the
officer authorized by him shall impose such fine as he
deems fit. While imposing such fine, the Collector or the
officer authorized by him shall have due regard to the
economic status of the individual, nature of his involvement
in the crime and the quantum of intoxicant recovered.
(5) Such penalty shall be, regardless of the
outcome of the trial if any, before the Special Court, non-
refundable.
(6) The owner of the vehicle / conveyance shall,
after the release of the vehicle / conveyance, produce the
vehicle/ conveyance as and when required by the
authorities.
[Explanation:- In all pending / ongoing cases of
confiscation/auction of vehicles, the Collector or the
officer authorized by him may give an opportunity to
the existing owner to pay the aforesaid penalty and get
the vehicle released. Upon satisfaction about ownership
and upon payment of such penalty, the ongoing
confiscation/auction proceeding may be dropped and
the vehicle released.]"
In said view of the matter, the writ petition is disposed of
with liberty to petitioner to avail the remedy of the amended
provision 12(A) of the Bihar Prohibition & Excise
(Amendment) Rules, 2022. It is made clear that this Court has
not expressed any opinion with respect to merit of case.
Patna High Court CWJC No.2480 of 2022 dt.22-04-2022
Interlocutory Application(s), if any, stands disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
Rajiv/veena-
AFR/NAFR
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