Rakesh Kumar @ Rakesh Rai vs The State Of Bihar
2022 Latest Caselaw 2822 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.20358 of 2021
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Rakesh Kumar @ Rakesh Rai Son of Arvind Kumar Resident of Ward No.-1, Bareba Bhanpur, Bareba, Anchal and P.S.- Goraul, District- Vaishali.

... ... Petitioner/s

Versus

1. The State of Bihar through Chief Secretary, Govt. of Bihar, Patna.

2. Additional Chief Secretary, Excise Department, Bihar, Patna.

3. Excise Commissioner, Excise Department, Government of Bihar, Patna.

4. The Collector-cum-District Magistrate, Muzaffarpur.

5. The D.C.L.R., West Muzaffarpur.

6. The Senior Superintendent of Police, Muzaffarpur.

7. The Sub Divisional Officer, West, Muzaffarpur.

8. The Excise Superintendent, Muzaffarpur.

9. S.H.O. of Paroo Police Station, Muzaffarpur.

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

For the Petitioner/s : Mr.Rajeev Ranjan, Advocate For the Respondent/s : Mr.Kumar Manish (SC5) ====================================================== 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 directing and commanding the respondent to quash the order dated 06.9.2021 (Ann-7) passed by Additional Chief Secretary, Bihar Patna in Excise Revision Case no.

94/2021 "Rakesh Kumar @ Rakesh Rai vrs Patna High Court CWJC No.20358 of 2021 dt.12-05-2022

Excise Commissioner and Ors." where under and whereby he has confirmed the order dated 16.1.2021 (Ann-4) of Land Reform Deputy Collector, West Muzaffarpur in Confiscation case no. 37/2020-21 as well as the order dated 19.3.21 (Ann-5) passed in Excise Appeal no. 183/2021 by Excise Commissioner, Patna, for confiscation of Mahindra Bolero Pick up vehicle bearing registration no. BR06GB9345.

(ii) Also for directing and commanding the respondents to release provisionally the Mahindra Bolero Pick up vehicle bearing its registration no. BR06GB9345, Engine no. -

GHG1A10052, Chassis no.

MA1ZN2GHKG1A14824 in favour of the petitioner as he is the real owner of its Mahindra Bolero Pick up vehicle, seized in Paroo P.S. case no. 242/19 dated 13.6.2019, lodged under Section 30/30(a) of Bihar Prohibition and Excise Amendment Act, 2016.

(iii) For directing and commanding the respondents to take immediate an appropriate action with respect to release the said Mahindra Bolero Pick up vehicle as valuation of the said seized vehicle is decreasing day by day.

(iv) And also for any other relief/ relieves for which petitioner is found to be legally entitled under the facts and circumstances of the case."

Allegation is of recovery of 225 litres of illicit liquor

from the seized vehicle of the petitioner. Patna High Court CWJC No.20358 of 2021 dt.12-05-2022

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, 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 Patna High Court CWJC No.20358 of 2021 dt.12-05-2022

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 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 Patna High Court CWJC No.20358 of 2021 dt.12-05-2022

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