Patna High Court

Shiv Kumar vs The State Of Bihar on 11 May, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.6204 of 2022

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Shiv Kumar, son of Late Mahesh Singh, resident of B-20 Gali No. 06 Suraksha Vihar Vikas Nagar Uttam Nagar, Police Station-Ranhaula, District- South East Delhi.

... ... Petitioner/s Versus

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

2. The Excise Commissioner, Bihar, Patna.

3. The District Magistrate, Siwan.

4. The Superintendent of Police, Siwan.

5. The Superintendent of Excise, Siwan.

6. The S.H.O. Mairwa Police Station, District-Siwan.

... ... Respondent/s

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

For the Petitioner/s : Mr.Sachida Nand Rai, Advocate 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 : 11-05-2022

Heard learned counsel for the parties.

Petitioner has prayed for following relief:-

" for issuance of a writ in the nature of mandamus or any other appropriate writ or writs directing the respondents to release the four wheeler vehicle of the Patna High Court CWJC No.6204 of 2022 dt.11-05-2022

petitioner bearing registration No. HR55AH-5019, Engine No. G4LAKM424443, Chassis No. MALA741CLKM388022 belongs to the petitioner, which has been seized in Mairwa Police Station Case No. 299 of 2021 registered for the offence under sections 272, 273, 420, 120B of the Indian Penal Code and sections 30(a), 38(i), 41(i) of the Bihar Prohibition and Excise Act, 2016 for the alleged recovery of only 720 M.L. foreign liquor for which neither the notice has been issued for initiation of confiscation proceeding nor confiscation proceeding has been initiated till dates so far the best of knowledge of the petitioner.

And/Or

For passing such other order or orders for which the petitioner will be found entitled in the eye of law."

Allegation is recovery of 720 ml. of illicit liquor

from the seized vehicle of the petitioner.

Petitioner claims to be the owner of the said

vehicle.

It is further submitted that a meagre quantity of 720

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. Patna High Court CWJC No.6204 of 2022 dt.11-05-2022

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.

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.

It is submitted on behalf of counsel for the State that Patna High Court CWJC No.6204 of 2022 dt.11-05-2022

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 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, Patna High Court CWJC No.6204 of 2022 dt.11-05-2022

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.