Patna High Court
Bharat Chaudhary vs The State Of Bihar on 10 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5330 of 2022
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Bharat Chaudhary Son of Late Ramavatar Chaudhary, Resident of Village-
Majhauli, P.S. - Vaishali, District - Vaishali.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration Excise and
Prohibition Department, Government of Bihar, Patna.
2. The District Magistrate-cum-Confiscation Officer, Vaishali.
3. Officer in Charge, Vaishali Police Station, Vaishali.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Nilesh 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)
Date : 10-05-2022
Heard learned counsel for the parties.
Petitioner has prayed for following relief:-
"For issuance of appropriate writ/writs
directing the officials/ respondents, particularly
respondent No.2, to release the vehicle of Shri Bharat
Chaudhary, i.e. Model : Bolero, Variant : B6/BS-6,
Color : White bearing Registration No. BR31PA8811
which has been seized in connection with Vaishali P.S.
Case No. 461/20 dated 7.11.21 for the alleged offence
registered under Sections 30(a), 41(i) of Bihar
Prohibition and Excise Act, 2016."
Allegation is recovery of 360 ml. of illicit liquor
from the seized vehicle of the petitioner.
Petitioner claims to be the owner of the said vehicle.
Patna High Court CWJC No.5330 of 2022 dt.10-05-2022
It is further submitted that a meagre quantity of 360
ml. of liquor has been recovered from the vehicle, as such, it
cannot be inferred that the vehicle was used for
transporting/carrying illicit liquor, nor it can be presumed that
recovered illicit liquor was kept for sale/purchase/ trade purpose
and it appears that same was kept for personal consumption.
In the facts and circumstances of the case, the
concerned District Magistrate/Confiscating Officer 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 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.
Patna High Court CWJC No.5330 of 2022 dt.10-05-2022
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 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 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
Patna High Court CWJC No.5330 of 2022 dt.10-05-2022
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.]"
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)
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)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 14.05.2022
Transmission Date NA
