Bhushan Kumar vs The State Of Bihar
2022 Latest Caselaw 2643 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Civil Writ Jurisdiction Case No.6801 of 2022

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Bhushan Kumar S/o-Pramod Prasad R/V- Bara Bazar, Shanti Nagar P.S.-

Chakiya District-East Champaran.

... ... Petitioner/s

Versus

1. The State of Bihar through the Principal Secrerary department of Excise,

Government of Bihar, Patna.

2. The District Magistrate-Cum-Collector, East Champaran.

3. The Superintendent of Police East Champaran.

4. The S.H.O. of Police Station Sangrampur, East Champaran.

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr.Kundan [email protected] Kundan Kumar, Adv 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 : 10-05-2022 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No.6801 of 2022 dt.10-05-2022

It is submitted on behalf of petitioner that he is the

owner of the seized motorcycle which was stolen by unknown

thieves on 24.06.2021 for which he has lodged FIR on

30.06.2021 giving rise to Motihari Town PS Case No. 431 of

2021 for the offence punishable under Section 379 of IPC, and

same was being used by the miscreants for transportation of

illicit liquor giving rise to Sangrampur PS Case No. 204 of 2021

dated 23.09.2021 for the offence punishable under Section 30(a)

(b) (c) of the Bihar Prohibition and Excise Act, 2016.

Petitioner claims to be owner of the seized motorcycle

and same was stolen 24.06.2021 for which he had earlier

instituted a case as such, petitioner cannot be held to be Patna High Court CWJC No.6801 of 2022 dt.10-05-2022

responsible for transportation of illicit liquor, however, since the

vehicle was used for transportation of illicit liquor same is liable

for confiscation.

In the facts and circumstances of the case, District

Magistrate/Confiscating officer concerned, is directed to

provisionally release the vehicle of petitioner after due

identification of ownership of the vehicle which was stolen and

subsequently recovered and seized by the police in excise case

on production of ownership and registration papers with respect

to vehicle in question in his name on furnishing adequate

sureties to the satisfaction of District Magistrate/Confiscating

Officer.

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 Patna High Court CWJC No.6801 of 2022 dt.10-05-2022

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

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 Patna High Court CWJC No.6801 of 2022 dt.10-05-2022

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 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 Patna High Court CWJC No.6801 of 2022 dt.10-05-2022

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 Patna High Court CWJC No.6801 of 2022 dt.10-05-2022

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/-

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