Patna High Court
Kailshwa Devi @ Kailash Devi vs The State Of Bihar on 11 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6202 of 2022
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Kailshwa Devi @ Kailash Devi W/o Ravindra Chauahri, R/o Village-
Sarmera, P.S.- Sarmera, District- Nalanda.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration, Excise and
Prohibition Department, Govt. of Bihar, Patna.
2. The Collector-cum- District Magistrate, Nalanda.
3. The Superintendent of Police, Nalanda.
4. The Superintendent of Excise, Nalanda.
5. The S.H.O. Sarmera Police Station, District- Nalanda.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Rajeev Kumar, Advocate
For the Respondent/s : Mr.Kumar Manish, SC 5
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 11-05-2022
Heard learned counsel for the parties.
The petitioner has prayed for the following
relief/s :-
Patna High Court CWJC No.6202 of 2022 dt.11-05-2022
Allegation is of recovery of 10 litres of illicit liquor
from one of the rooms of the petitioner, however, whole
residential house has been sealed in contravention of Rule
12(A) of Bihar Excise Rules, 2021 which reads as follows:
12. Sealing of Premises - (A)
(i) If any offence is or has been committed in any
premises (whole or part thereof) under this Act. any officer
within the meaning of section 73 of the Act may immediately
seal the premises (whole or part thereof).
Immediately here means that sealing should be done
in the course of the raid itself. In any case, sealing shall be done
within 24 hours of the institution of First Information Report.
(ii) ...
(iii) ...
(iv) ...
(v) As far as possible, only that portion of private
residential premises which has been used for committing offence
shall be sealed and not the whole premises or entire residence-
Further, Rule 12(B)(i) of the aforesaid rule provides
that:
In the said view of the matter, the District
Collector/Confiscating authority, Nalanda is directed to unseal
Patna High Court CWJC No.6202 of 2022 dt.11-05-2022
the residential premises other than from where illicit liquor was
recovered and is further directed to conclude the confiscation
proceeding within 90 days from the date of filing of show cause
by the petitioner, if not already filed or within 90 days if the
show cause has been filed from the date of receipt/production of
a copy of order passed by this Court, failing which, the sealed
room of the petitioner shall be unsealed till conclusion of
confiscating proceeding and possession to be handed over to the
petitioner, on furnishing adequate sureties and undertaking to
the satisfaction of District Collector / Confiscating Authority,
Nalanda.
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(B) has been inserted which reads as under:-
"12B. Release of Premises on Payment of
Penalty: - (1) If any premises or part thereof has been seized
or sealed by any police or excise officer under the Act, then
in terms of section-57B (2) of the Act, the Collector or an
officer authorized by him, upon receipt of an application in
Form V from the owner of the said premises, may release or
unseal the said premises or part thereof 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 premises or the owner is not
coming forward, the Collector or the officer authorized by
Patna High Court CWJC No.6202 of 2022 dt.11-05-2022
him shall, after waiting for 15 days from the date of
seizure/sealing, proceed to confiscate the premises as per the
provisions of the Act.
(2) 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, location
of the premises and the quantum of intoxicant recovered
while deciding the quantum of fine to be paid by the
individual. However, the fine shall not be less than Rs. one
Lakh in any case. In any case, the Collector shall not wait
beyond 15 days from the date of seizure/sealing 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 premises
shall not be in the public interest, the Collector or the officer
authorized by him shall proceed ahead with the confiscation
of the said premises or part thereof and its subsequent
auction/disposal.
(4) Such penalty shall be, regardless of the outcome
of the trial if any, before the Special Court, non-refundable.
(5) The owner of the Premises shall, after the
release of the premises, allow the inspection of the premises
as and when desired by the authorities.
[Explanation: In all pending/ongoing cases of
confiscation/ auction of premises, the Collector or the officer
authorized by him may give an opportunity to the existing
owner to pay the aforesaid penalty and get the premises
released. Upon satisfaction of ownership and upon payment
of such penalty, the ongoing confiscation/auction proceeding
may be dropped and the premises released.]"
In view of amendment in the Excise Act, and same
being applicable in pending case, it shall be open for the
Patna High Court CWJC No.6202 of 2022 dt.11-05-2022
petitioner to get his/her house unsealed in terms of Rule 12(B)
inserted by amending Bihar Prohibition and Excise Rules, 2021.
Liberty reserved to petitioner to approach this Court for
same and subsequent cause of action, if need so arises.
With aforesaid observation and direction, the writ
petition stands disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
Ashwini/Sujit
AFR/NAFR
CAV DATE
Uploading Date 18.05.2022
Transmission Date
