Patna High Court
Mala Kumari vs The State Of Bihar on 6 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4058 of 2022
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Mala Kumari Wife of Manoj Kumar Resident of Village- Bulaki Tola, Police
Station- Rajepur, District- East Champaran.
... ... Petitioner/s
Versus
1. The State of Bihar through the Commissioner, Excise, Government of Bihar,
Patna.
2. The Collector-cum-District Magistrate, East Champaran.
3. The Superintendent of Police, East Champaran.
4. The Station House Officer, Madhuban Police Station, District- East
Champaran.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Anil Kumar, Adv
For the Respondent/s : Mr.Vivek Prasad (GP7)
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(The proceedings of the Court are being conducted by Hon'ble the Chief
Justice /Hon'ble Judges through Video Conferencing from their residential
offices/residences. Also, the Advocates and the Staffs joined the proceedings
through Video Conferencing from their residences /offices.)
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 06-05-2022
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
Patna High Court CWJC No.4058 of 2022 dt.06-05-2022
Allegation is recovery of 1 litre of illicit liquor from the
dickey of the seized motorcycle.
Petitioner claims to be the owner of the seized vehicle.
It is further submitted that a meagre quantity of 1 litre of
liquor has been recovered from the vehicle, as such, it cannot be
construed that the vehicle was used for transporting/carrying
illicit liquor.
In the facts and circumstances of the case, the District
Magistrate/Confiscating Officer concerned is directed to
provisionally release the vehicle of petitioner after due
identification of ownership of the vehicle seized by the police in
excise case on production of ownership and registration papers
Patna High Court CWJC No.4058 of 2022 dt.06-05-2022
with respect to vehicle in question in his name with two sureties
(one local) to the extent of the value of the vehicle as indicated
in the insurance document.
The petitioner while submitting the sureties shall also
furnish the following affidavits/undertakings:
(i) That the petitioner shall not indulge in
creating any third party right or interest in respect of the
vehicle during the pendency of the confiscation proceeding
and shall not alienate the vehicle during this period.
(ii) The petitioner shall furnish an undertaking to
produce the vehicle before the confiscating authority as
and when required.
(iii)Prior to release of the vehicle, a Panchanama
would be prepared wherein the photograph of the vehicle
shall be taken and will be certified by the petitioner and
same shall be kept on record so that in future if so required,
it may be used as a secondary evidence. The petitioner
shall furnish an undertaking not to challenge the said
Panchanama.
The release shall be allowed within a period of 14 days
from the date of submission of the sureties and the undertakings
as stated above, which would however be subject to finalization
of the confiscation proceeding.
OR
It is submitted by learned 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
Patna High Court CWJC No.4058 of 2022 dt.06-05-2022
12(A) and 57(B) have 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 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.
Patna High Court CWJC No.4058 of 2022 dt.06-05-2022
(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.]
57B-Things or premises liable to be released
upon penalty-
(1) Any animal, vehicle, vessel or other
conveyance used for committing any offence punishable
under this Act that has been seized by any police Officer or
Excise Officer may be released by the Collector upon
payment of such penalty as may be notified by the State
Government.
(2) Any premises or part thereof used for
committing any offence punishable under this Act that has
been seized by any police Officer or Excise Officer may be
released by the Collector upon payment of such penalty as
may be notified by the State Government.
(3) If the person concerned does not pay the
penalty, then the Collector shall proceed to confiscate the
said animal, vehicle, vessel or other conveyance and
premises as per section-58.
[Explanation 1: It shall not be a right of the
accused to get his conveyance, item or premises released
upon payment of the required penalty. The Collector, based
upon a report by a police Officer or an Excise Officer, may,
for reasons to be recorded in writing, still refuse to release
the said conveyance, item or premises and proceed ahead
with confiscation and auction/destruction.]
[Explanation 2: The Collector shall, from the date
of this Amendment coming into force, close the on-going
confiscation proceeding if the person concerned pays the
penalty as notified and release such vehicle, conveyance or
premises.]
Patna High Court CWJC No.4058 of 2022 dt.06-05-2022
[Explanation 3: Such release shall not affect the
outcome of trial, if any, before the Special Court.]"
In said view of the matter, the writ petition is disposed
of with liberty to petitioner to avail the remedy of the amended
provision of 12(A) and 57B 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 the case.
With said observation and direction, this writ petition is
disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
ranjan/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date
Transmission Date NA
