Patna High Court
Zakho Sah vs The State Of Bihar on 12 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15762 of 2021
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Zakho Sah, Son of Karu Sah, Resident of Village Sondiha, P.S. - Pasrah,
District - Khagaria.
... ... Petitioner/s
Versus
1. The State of Bihar, through Additional Principal Secretary Department of
Excise, State of Bihar, New Secretariat 176D, 1st Floor, Vikash Bhawan,
Bailey Road, Patna.
2. Excise Commissioner, New Secretariat, Bihar, Patna.
3. District Magistrate Cum Collector, Khagaria.
4. Superintendent of Police, Khagaria.
5. Police Inspector, Gogri.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Siddhartha Kumar Singh, Advocate
For the Respondent/s : Mr.Vikash Kumar ( SC11 )
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
Date : 12-05-2022
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):
"For issuance of appropriate
writ/order/direction in the nature of writ of
Mandamus to directing the respondent to release the
Bolero Pikup van bearing Registration No.
BR11GC6567 Engine no. MIZN2TBKKIH67797
Chassis No. TBK1H74347 and quash the order dated
18.12.2020 passed by Learned District
Magistrate/Collector, Khagaria in Confiscation Case
Patna High Court CWJC No.15762 of 2021 dt.12-05-2022
No. 06/2020 21 by which release of Bolero Pik Van
has been refused and thereafter confiscated the
aforesaid vehicle which was seized under section 56
of the Bihar Prohibition of Excise Act 2018 in
Pasraha P.S. Case No. 39/2020 dated 27.04.2020
arising out of G.R. No. 1251/20, instituted for the
offence under section 30(a) of Bihar Prohibition and
Excise (Amendment) Act 2018 and also quash the
order dated 22.02.2021 passed in Appeal Case No.
94/2021 by learned Excise Commissioner, Bihar,
Patna as well as order dated 20.07.2021 passed by
Additional Principal Secretary, Department of
Excise, State of Bihar, Patna in Revision Case No.
47/2021."
Allegation is recovery of 328.680 litres of illicit liquor
from the seized vehicle of the petitioner.
Petitioner claims to be the owner of the seized
vehicle.
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
Patna High Court CWJC No.15762 of 2021 dt.12-05-2022
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,
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.]
Patna High Court CWJC No.15762 of 2021 dt.12-05-2022
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.]"
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 petitioner to approach this
Court for same and subsequent cause of action, if so arises.
Patna High Court CWJC No.15762 of 2021 dt.12-05-2022
Interlocutory Application(s), if any, shall stand
disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
K.C.Jha/DKS
AFR/NAFR
CAV DATE
Uploading Date 18.05.2022
Transmission Date
