Sitranjan Saw vs The State Of Bihar
2022 Latest Caselaw 2772 Patna

Citation : 2022 Latest Caselaw 2772 Patna
Judgement Date : 11 May, 2022

Patna High Court

Sitranjan Saw vs The State Of Bihar on 11 May, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.18670 of 2021
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Sitranjan Saw, Son of Ram Chandra Saw Resident of Mohalla- Mahua Toli, P.S.- Sukdeo Nagar, District- Ranchi (Jharkhand).

... ... Petitioner/s Versus

1. The State of Bihar through its Principal Secretary, Excise Department, Bihar, Patna.

2. The Additional Chief Secretary, Prohibition, Bihar, Patna.

3. The Excise Commissioner, Excise Department, Bihar, Patna.

4. The District Magistrate cum Collector, Aurangabad.

5. The Senior Deputy Collector-cum-Presiding Officer, Excise No. 6, Aurangabad.

6. The Superintendent of Prohibition, Aurangabad.

7. The Special Superintendent of Prohibition, Head Quarter, Aurangabad.

8. The Sub-Inspector of Excise, Sadar-cum-Nabinagar, Anchal- Aurangabad.

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

For the Petitioner/s : Mr.Manish Kumar Singh, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR)

Date : 11-05-2022

Petitioner has prayed for the following relief(s):-

"(I) To issue an appropriate writ for order/orders for setting aside the order dated 06.02.2021 passed in Excise Case No. 236/2020 and 99/2021 by learned Senior Deputy Collector-cum-Presiding Officer No. 6.

(II) To issue an appropriate order or direction or writ for dated 05.07.2021 passed in Excise Appeal No. 290 of 2021 by the Learned Excise Commissioner Bihar, Patna.

(III) To issue an appropriate order or direction or writ for quashing the revisional order dated 06.09.2021 passed in Excise Revision No. 114/2021 by Principal Secretary, Excise Department, Bihar, Patna, whereby and wherein the order passed by the learned Senior Deputy Collector-cum-Presiding Officer No. 6, Aurangabad dated Patna High Court CWJC No.18670 of 2021 dt.11-05-2022

06.02.2021 and the Learned Excise Commissioner, Bihar Patna dated 05.07.2021 confiscating the Mahindra Bolero Pik-up Van of the petitioner has been upheld.

(IV) To grant any other relief(s) for which the petitioner may be entitled to in the given facts and circumstances of the case."

Petitioner claims to be the owner of the seized vehicle.

Allegation is of recovery of 1470 liters of illicit liquor

from the seized vehicle of the petitioner.

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) as well as 57B 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 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 Patna High Court CWJC No.18670 of 2021 dt.11-05-2022

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 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 Patna High Court CWJC No.18670 of 2021 dt.11-05-2022

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

provision 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 case.

Equally, liberty reserved to the petitioner to approach

this Court for the same and subsequent cause of action, if the

need so arises.

Petition stands disposed of with the aforesaid

observations/directions.