Shankar Kumar vs The State Of Bihar
2022 Latest Caselaw 2547 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.5170 of 2022
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Shankar Kumar son of Late Brij Nandan Singh, resident of Mohalla- Pragati Nagar, Sipara, P.S.- Beur, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Excise, Government of Bihar, Patna.

2. The Additional Chief Secretary, Bihar, Patna.

3. The Excise Commissioner, Bihar, Patna.

4. The District Magistrate, Gaya.

5. The Superintendent of Police, Gaya.

6. The Station House Officer, Barachatti Police Station, District- Gaya.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Amrit Abhijat For the Respondent/s : Mr.Vivek Prasad ( Gp 7 ) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR)

Date : 09-05-2022 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

"To issue a writ in the nature of certiorari, setting aside order dated 08.01.2022 contained in Memo No. Excise Revision No. 277/2021 (Annexure-7) passed by Respondent No.2, Additional Chief Secretary, Bihar, Patna, passed in Excise Revision Case No. 277/2021 affirming the order dated 22.10.2021 passed by Excise Commissioner in Excise Appeal Case No.652/2021 affirming the order dated 25.08.2021 passed by the District Magistrate, Gaya in Patna High Court CWJC No.5170 of 2022 dt.09-05-2022

Confiscation Case No. 268/2021, directing to confiscate the Tank Lorry bearing Registration No. BR-01GH-7124 and rejecting the case of the petitioner for release of his vehicle. The same was filed in compliance of order dated 17.12.2020 passed by this Hon'ble Court in C.W.J.C. No. 9317 of 2020, Shankar Kumar Vs. the State of Bihar and Others.

B) To issue a writ in the nature of certiorari, setting aside order dated 25.08.2021 (Annexure-5) passed by District Magistrate, Gaya in vehicle Confiscation Case No. 268 of 2021 and also order dated 22.10.2021 (Annexure-6) passed in Excise Appeal Case No. 652 of 2021 passed by Excise Commissioner, State of Bihar.

C) To issue a writ in the nature of mandamus directing /commanding the Respondents to release Tank Lorry bearing Registration No. BR-01GH-7124, in favour of petitioner which has been seized in connection with Barachatti P.S. Case No. 351/2020 registered under Section 30(a) of Bihar Prohibition and Excise Amendment Act, 2016.

D) Any other relief or reliefs, which this Hon'ble Court may deem fit and proper in the facts and circumstances may also be granted."

Allegation is recovery of 15.75 litre of illicit liquor from

the seized vehicle of the petitioner.

Petitioner claims to be the owner of the seized vehicle. Patna High Court CWJC No.5170 of 2022 dt.09-05-2022

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

12(A) as well as 57B 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.

(5) Such penalty shall be, regardless of the outcome of the trial if any, before the Special Court, non-

Patna High Court CWJC No.5170 of 2022 dt.09-05-2022

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.] [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 12(A) and 57B of the Bihar Prohibition & Excise Patna High Court CWJC No.5170 of 2022 dt.09-05-2022

(Amendment) Rules, 2022. It is made clear that this Court has

not expressed any opinion with respect to merit of case.

Equally, liberty reserved to petitioner to approach this

Court for same and subsequent cause of action, if so arises.

(Sanjay Karol, CJ)

( S. Kumar, J)

Ashwini/Sujit AFR/NAFR CAV DATE Uploading Date 16.05.2022 Transmission Date