Vikram Mitruka vs The State Of Bihar
2022 Latest Caselaw 2654 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.6282 of 2022
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Vikram Mitruka Son of Mr. Sri Niwash Mitruka, resident of Plot No. A 21/08, Uttarayan Motigara, Darjeeling, P.S. Motigara, District Darjeeling (West Bengal).

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna.

2. The District Magistrate-cum-Confiscating Officer, Muzaffarpur.

3. The Officer Incharge of Gaighat Police Station, P.S. Gaighat, District Muzaffarpur.

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

For the Petitioner/s : Mr.Shivam, Adv For the Respondent/s : Mr.Kumar Manish (SC5) ====================================================== 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):-

"That this is an application for issuance of an appropriate writ, order or direction for directing the official respondents, particularly the Respondent No. 2 i.e. The District Magistrate, Muzaffarpur, to release the Bus being Registration No. WB73G/1589 which has been seized in connection with Gaighat P.S. Case No. 105 of 2022 05.03.2022 registered under sections 272, 273/34 of the Indian Penal Code and section 30(a), 36, 41(1) of the Bihar Prohibition and Excise Amendment, Act, 2018."

Allegation is of recovery of 22.50 litre from the seized

Bus.

As there is recovery of illicit liquor from the Bus, as Patna High Court CWJC No.6282 of 2022 dt.10-05-2022

such same is liable for confiscation, however, petitioner claims

to be the owner of the seized Bus and same is a commercial

vehicle plying from Siliguri to Patna which petitioner has

purchased on loan and it is alleged that Driver, Khalasi and

Conductor of bus in connivance with accused were transporting

illicit liquor on said vehicle without knowledge or consent of the

petitioner.

In the facts and circumstances of the present case, the

District Magistrate / Confiscating Authority, Muzaffarpur is

directed to provisionally release the vehicle in favour of

petitioner on production of ownership and registration

documents and upon furnishing bank guarantee of the value of

insured amount of the vehicle.

The petitioner while submitting the bank guarantee

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.

Patna High Court CWJC No.6282 of 2022 dt.10-05-2022

(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 bank guarantee 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 Patna High Court CWJC No.6282 of 2022 dt.10-05-2022

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.

Patna High Court CWJC No.6282 of 2022 dt.10-05-2022

(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.]" Patna High Court CWJC No.6282 of 2022 dt.10-05-2022

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 in terms of Rule 12(A)

and 57(B) inserted by amending Bihar Prohibition and Excise

Rules, 2021.

With said observation and direction, this writ petition is

disposed of.

(Sanjay Karol, CJ)

(S. Kumar, J)

ranjan/-

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