Patna High Court
Niraj Kumar @ Bala Yadav vs The State Of Bihar on 6 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5120 of 2022
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Niraj Kumar @ Bala Yadav S/o Naresh Kumar Yadav, Resident of Village -
Pipra Baisa, Ward No. -2, P.S. Parbatta, District - Khagaria.
... ... Petitioner/s
Versus
1. The State of Bihar through its Principle Secretary Bihar Excise Department
at Patna.
2. The Excise Commissioner, Bihar Excise Department at Patna.
3. The Collector, District of Khagaria at Khagaria.
4. The Superintendent of Police, Khagaria.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Binod Kumar, Advocate
For the Respondent/s : Mr.Vivek Prasad (GP7)
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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 : 06-05-2022
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
(i) For quashing order dated 28.01.2022 passed in
Excise Confiscation Case No. 29/2021-22 arising
out of Pasraha P.S. Case No. 127/2021 for offence
under section 30(a) of Bihar Prohibition and Excise
Act, by Collector Khagaria whereby and where
under Aapache Motorcycle bearing Registration no.
BR34R-6323 was confiscated and further directed
to auction the confiscated vehicle.
(ii) For giving direction to Respondent authority to
release Apache motorcycle bearing Registration
No. BR34R-6323 which was confiscated.
Patna High Court CWJC No.5120 of 2022 dt.06-05-2022
Petitioner has approached this Court without
exhausting the statutory remedy of appeal against the impugned
order, as such, petitioner is granted liberty to avail the remedy of
appeal against the confiscation order passed by the Confiscating
Authority- cum- District Magistrate, before the Appellate
Authority and if any such appeal is filed within 4 weeks then
appellate authority shall condone the delay in filing the appeal
and shall decide the appeal on its own merit preferably within 8
weeks from the date of its filing.
During pendency of appeal, the confiscated property/
vehicle shall not be auction sold, if not already auction sold.
With aforesaid liberty, the writ petition is disposed of.
OR
It is submitted on behalf of counsel for the State that
during pendency of writ petition, there has been amendment in
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
Patna High Court CWJC No.5120 of 2022 dt.06-05-2022
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 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
Patna High Court CWJC No.5120 of 2022 dt.06-05-2022
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 view of amendment in the Excise Act, and same
being applicable in pending cases, it shall be open for the
petitioner to get his/her vehicle released after making payment
of penalty in terms of Rule 12(A) inserted by amending Bihar
Prohibition and Excise Rules, 2021.
With aforesaid observation and direction, the writ
petition stands disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
veena/rajiv-
AFR/NAFR
CAV DATE
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