Bashisth Prasad Yadav vs The State Of Bihar
2022 Latest Caselaw 2820 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.18497 of 2021
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Bashisth Prasad Yadav Son of Late Wakil Prasad Yadav Resident of Village- Lagar, P.S.- Parbatta, District- Khagaria.

... ... Petitioner/s

Versus

1. The State of Bihar.

2. The Collector cum District Magistrate, Bhagalpur.

3. The Superintendent of Police, Naugachia.

4. The Station House Officer (S.H.O.), Bihpur (Bhawanipur) Police Station, District- Bhagalpur.

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

For the Petitioner/s : Mr.Manoj Kumar Jha, Advocate For the Respondent/s : Mr.Vivek Prasad (GP7) ====================================================== 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):

"(I) For issuance of writ or writ, order or orders and direction and directions in the nature of Certiorari for quashing the order bearing Memo. No. 654 dated 08/08/2021 (Annexure- 4) issued under the signature of Addl.

Chief Secretary, Prohibition of Excise & Registration, Government of Bihar, Patna in Excise Revision No.- 53/2021 whereby and whereunder he has dismissed the revision Patna High Court CWJC No.18497 of 2021 dt.12-05-2022

application of the petitioner affirming the order dated 04/05/2021 passed by the Excise Commissioner, Bihar, Patna in Excise Appeal No.-324/2021 as well as the order dated 05/02/2021 passed by the Collector, Bhagalpur in Misc. (Excise) No.-157/2020-21.

(ii) For issuance of further writ in the nature of Certiorari for quashing the order dated 04/05/2021 (Annexure-3) passed by the Excise Commissioner, Bihar, Patna in Excise Appeal No.- 324/2021 whereby and whereunder appeal of the appellant-petitioner has been dismissed affirming the order dated 05/02/2021 passed by the Collector, Bhagalpur in Misc. (Excise) No.- 157/2020-21.

(iii) For issuance of further writ in the nature of Certiorari for quashingt the order dated 05/02/2021 (Annexure-2) passed by the Collector, Bhagalpur in Misc. (Excise) No.- 157/2020-21 whereby and whereunder Scorpio vehicle of the petitioner bearing Registration No.- BR34P-3912 has been confiscated under section 56(a) and 58(2) of Bihar Prohibition & Excise (Amendment) Act, 2018 and the Superintendent Excise, Bhagalpur is directed to sell the confiscated Scorpio in open auction and deposit the price in appropriate head of government in District Treasury, Bhagalpur.

(iv) For issuance of further writ in the nature of Mandamus commanding and directing the respondent authorities to release the Scorpio vehicle bearing Registration No.- BR34P-3912 in Patna High Court CWJC No.18497 of 2021 dt.12-05-2022

favour of the petitioner which was seized in connection with a case bearing Bihpur (Bhawanipur) P.S. Case No.- 215/2020 registered u/s 30(d) & (e) of the Bihar Prohibition & Excise Act, 2016.

(v) And/or pass such other consequential relief or reliefs to which petitioner is found entitled in the facts and circumstances of the case."

Allegation is of recovery of huge quantity 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 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, Patna High Court CWJC No.18497 of 2021 dt.12-05-2022

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.]

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 Patna High Court CWJC No.18497 of 2021 dt.12-05-2022

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.

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