Patna High Court
Vivek Bhushan Jha vs The State Of Bihar And Ors on 12 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18514 of 2017
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Vivek Bhushan Jha S/o Dr. Kameshwar Jha r/o Village Umari, P.S. Lakhnour,
District Madhubani.
... ... Petitioner/s
Versus
1. The State Of Bihar and Ors
2. The Collector, Muzaffarpur.
3. The Senior Superintendent of Police, District Muzaffarpur.
4. The Superintendent of Police, District Muzaffarpur.
5. Excise Commissioner, Bihar, Patna.
6. S.H.O., Ahiyapur Police Station, District Muzaffarpur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Harsh Singh
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):-
"a. For passing an appropriate writ, order or
direction declaring the provisions of Sections 57, 58, 60 &
61 of the Bihar Prohibition & Excise Act, 2016(hereinafter
referred to as the Act) as ultra vires the constitution in so
far as the provisions vest the power of confiscation in an
executive authority viz., the Collectgor and bars the
jurisdiction of the Courts in respect of confiscation under
the Act.
b. For passing a writ in the nature of mandamus
or an order, direction or injunction restraining the
respondents from giving effect to or implementing the
provisions of Sections 57, 58, 60 & 61 of the Act.
c. For passing a writ in the nature of mandamus
or an order, direction or injunction restraining the
Respondents from acting upon the order dated 23.10.2017
Patna High Court CWJC No.18514 of 2017 dt.12-05-2022
passed in Confiscation Case No. 169/2017-18 arising out
of Ahiyapur P.S. Case No. 698 of 2017 by the Collector,
Muzaffarpur in exercise of power under section 58 of the
Act wherey the Grand-I10 car of the petitioner bearing
registration number BR01DB-6094 has been confiscated
and directed to be auctioned.
d. For passing a writ in the nature of certiorari
for calling for the records of Confiscation Case No.
169/2017-18 arising out of Ahiyapur P.S. Case No.
698/2017 and quashing the order dated 23.10.2017 passed
by the Collector, Muzaffarpur in exercise of powers under
section 58 of the Act.
e. Consequentially, for passing a writ in the
nature of Mandamus or any other writ order or direction
commanding the Respondent authorities to release Grand
I10 car of the petitioner bearing registration number
BR01DB-6094 confiscated vide order dated 23.10.2017
passed in Confiscation Case No. 169/2017-18 arising out
of Ahiyapur P.S. Case No. 698/2017 by the Collector,
Muzaffarpur, exercise of power under section 58 of the Act
in favour of the petitioner.
f. For an ad interim order or direction directing
the respondents to release Grand I10 car of the petitioner
bearing registration number BR01DB-6094 confiscated
vide order dated 23.10.2017 passed in Confiscation Case
NO. 169/2017-18 arising out of Ahiyapur P.S Case No.
698 of 2017, by the Collector, Muzaffarpur in exercise of
powers under section 58 of the Act during the pendency of
the writ application."
Allegation is recovery of 375 ml of illicit liquor from
the vehicle of petitioner and vehicle was being driven in a
drunken condition as a result of which vehicle was seized giving
rise to Ahiyapur P.S. Case No. 698 of 2017 dated 19.02.2017
under section 272, 273 of IPC and Section 30(a) of Bihar
Prohibition and Excise Act.
On the basis of recommendation of Senior
Patna High Court CWJC No.18514 of 2017 dt.12-05-2022
Superintendent of Police, Muzaffarpur, confiscation proceeding
being confiscation no. 169/2017-18 was initiated against the
seized vehicle and by order dated 23.10.2017, the seized vehicle
was confiscated by the order passed by the District Collector
cum Confiscating Authority, Muzaffarpur, and the vehicle was
directed to be auction sold.
Against the order dated 23.10.2017, petitioner preferred
CWJC No. 15814 of 2017 and by order dated 19.12.2017, there
was provisional release of the confiscated vehicle and at present
the vehicle is in possession of 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) and 57(B) 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.
Patna High Court CWJC No.18514 of 2017 dt.12-05-2022
(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.18514 of 2017 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 of 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 the case.
Patna High Court CWJC No.18514 of 2017 dt.12-05-2022
Equally, liberty reserved to petitioner to approach this
Court for same and subsequent cause of action, if so arises.
With said observation and direction, this writ petition
is disposed of.
(Sanjay Karol, CJ)
(S. Kumar, J)
Ashwini/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18.05.2022
Transmission Date NA
