Nagina Choudhary vs The State Of Bihar
2023 Latest Caselaw 4042 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10944 of 2023
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Nagina Choudhary Son of Jaglal Chaudhary Resident of Village-Jangharo, P.S.-Ben, Distirct-Nalanda, Bihar-803111.

... ... Petitioner/s Versus

1. The State of Bihar.

2. The Principal Secretary, Registration, Excise and Prohibition Department, Govt. of Bihar, Patna.

3. The District Magistrate Cum Collector Nalanda at Biharsharif.

4. The Superintendent of Excise Prohibition Nalanda at Biharsharif.

5. The Assistant Excise Commissioner Nalanda at Biharsharif.

6. The officer Incharge/ S.H.O. Ben Police Station, District Nalanda at Biharsharif.

7. The Land Reforms Deputy Collector District Nalanda at Biharsharif.

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

For the Petitioner/s : Mr. Vidhan Chandra Pathak, Advocate For the Respondent/s : Mr. Kumar Manish (SC- 5) ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 25-08-2023

In the instant writ petition, petitioner has prayed for

the following relief(s):-

"i. For issuance of an appropriate direction/s, order/s, writ/s to the respondent authorities to open the seal of the house of the petitioner situated over Khata No. 90, Khesra No. 342, Mauza Jangharo, Thana No. 404, Area 1 ¼ decimal upon which the house constructed which has been acquisition under 58 (2) of Bihar Excise and Prohibition Act by the Patna High Court CWJC No.10944 of 2023 dt.25-08-2023

concerned authority in connection with Ben P.S. Case No. 217/21 dated 31.12.2021, offences alleged u/s 30 (e) Bihar Excise and Prohibition Act.

ii. For to set aside the confiscation order of the house of the petitioner dated passed by the 25.07.2022 Learned Land Reforms Deputy Collector Rajgir, Nalanda in confiscation (Excise) Case NO. 32/2022 (State Versus Nagina Chaudhary) (Arising out of Ben P.S. Case No. 217/2021 dated 31.12.2021). And also set aside the order dated 18.05.2023 passed in Excise Appeal No. 33/2023 passed by Excise the learned court Commissioner Patna. of And also to set aside the order dated 07.06.2023 passed in Excise Revision case No. 21/2023 passed by the Additional Chief Secretary Bihar, Patna, both have confirmed the order passed by the learned court of Land Reforms deputy Collector Nalanda. (Annexure- 2 series) iii. For issuance of the direction to restrain the authority concern for holding an auction sale of the house of the petitioner in view of the order dated 25.07.2022 passed by the Learned Land Reforms Deputy Collector Rajgir, Nalanda in confiscation (Excise) Case NO. 32/2022 (State Versus Nagina Chaudhary) (Arising out of Ben P.S. Case No. 217/2021 dated 31.12.2021.

iv. For direction to the respondent authorities to open the seal of the house were Patna High Court CWJC No.10944 of 2023 dt.25-08-2023

the alleged about 20 litres of Chhowa was recovered.

V. For grant of any other relief/ reliefs for which the petitioner may be found entitled in course of hearing of this writ application."

02. The petitioner's premises having Khata No. 90,

Khesra No. 342, Mauza Jangharo, Thana No. 404, Area 1 ¼

decimal was involved in the offences alleged under Section 30

(e) of the Bihar Excise and Prohibition Act, 2016 (for short 'the

Act, 2016'). In this regard, Ben P.S. Case No. 217/2021 was

registered on 31.12.2021.

03. Arising out of the above facts and circumstances,

the official respondents proceeded to initiate a parallel

proceeding. Confiscation proceeding was conducted under

Section 56 of the Act, 2016. The petitioner suffered an order in

the confiscation proceedings on 25.07.2022. Feeling aggrieved

and dissatisfied with the aforementioned order, he invoked

remedy of appeal and revision and in both the proceedings he

has suffered orders dated 18.05.2023 and 07.06.2023,

respectively. In other words, the confiscation of petitioner's

premises cited supra has been affirmed and it has attained

finality. Hence, the present writ petition.

04. Learned counsel for the petitioner submitted that Patna High Court CWJC No.10944 of 2023 dt.25-08-2023

seizure of premises and its auctioning would be too harsh

having regard to the offences committed by him insofar as

storage of 20 litres of molasses in the aforementioned premises.

Therefore, he has sought for cancellation of auction sale of the

premises cited supra and release the same in his favour.

05. Learned counsel for the respondents resisted the

aforesaid contention and submitted that statutory provision

provides for seizure of premises, which is involved in the

alleged offences under Section 30(e) of the Act, 2016.

Therefore, no interference is called for.

06. Heard the learned counsel for the respective

parties.

07. Core issue involved in the present lis is whether

the respondent could confiscate the residential property in

connection with the offences under Section 30(e) of Act, 2016

insofar as storage of 20 litres of molasses is concerned and

whether it is illegal or not?

08. Undisputed facts are that petitioner and his

premises cited supra are involved in the offences under Section

30(e) of Act, 2016 insofar as storage of 20 litres of molasses and

related activities. In this regard, the confiscation proceedings

was initiated against the petitioner and such order was passed on Patna High Court CWJC No.10944 of 2023 dt.25-08-2023

25.07.2022 and it was subject matter of litigation before the

Appellate and Revisional Authority and the petitioner thereby

suffered order on 18.05.2023 and 07.06.2023. In other words,

there is a proposal for auctioning the subject matter of premises.

09. In the meanwhile, the State Government has

issued Rules called 'Bihar Prohibition and Excise Rules, 2021'

(for short 'the Rules, 2021). Rule 12(B) of the Rules, 2021, is

relating to confiscation of premises and consequential action.

The aforementioned Rule has not been taken note of by the

confiscating authority for the reasons that as on the date of

confiscation proceedings, the aforementioned Rules were not in

vogue. However, having regard to the language employed in

Rules, 2021, it is evident that for pending cases also Rule 12(B)

of the Rules, 2021 could be invoked by the competent authority.

Therefore, we are of the view that Appellate Authority and

Revisional Authority while deciding the appeal on 18.05.2023

and 07.06.2023, respecitvely have not taken note of Rule 12(B)

of Rules, 2021. Therefore, it is a case of remand to the

Revisional Authority to take note of Rule 12(B) of the Rules,

2021. If he is not a competent authority to take action under

Rule 12 (B) of the Rules, 2021, in such an event, he is permitted

to transmit the papers to the competent authority to take Patna High Court CWJC No.10944 of 2023 dt.25-08-2023

decision with reference to Rule 12(B) of Rules, 2021.

10. The concerned authority is hereby directed to take

note of quantum of penalty for seizure of only 20 litres of

molasses and other activities would be too harsh in the light of

Article 300-A of the Constitution of India. Further, the State

Government has not issued any guidelines or yardstick insofar

as imposition of penalty in respect of offence under Section

30(e) of Act, 2016 is concerned. In other words, imposing

random penalty like seizure of motor vehicle, confiscation of

immovable property or properties and such action are not

commensurate with the offences committed by the respective

persons. These things are required to be examined by the

concerned authority while exercising power under Rule 12(B) of

Rules, 2021. In this regard, the petitioner is hereby directed to

complete the formalities like submission of application in

prescribed application form within a period of two weeks from

today. Further, the concerned authority is hereby directed to pass

a speaking order by taking note of Rule 12(B) of the Rules,

2021 read with the constitutional provision of Article 300-A of

the Constitution of India and proceed to pass an order within a

period of two months from the date of receipt of the petitioner's

application and other formalities.

Patna High Court CWJC No.10944 of 2023 dt.25-08-2023

11. In the meanwhile, the concerned officials are

hereby directed to stall the auction proceeding of the subject

matter of premises cited supra, subject to passing of order under

Rule 12(B) of the Rules, 2021. Accordingly, the petitioner has

made out a prima-facie case so as to interfere with the order of

the Revisional Authority dated 07.06.2023 and it is set aside and

the matter is remanded to the Revisional Authority.

12. The State Government must evolve and

incorporate appropriate law in so far as determining penalty in

terms of money in respect of seizure of motor vehicle or

immovable properties like immovable premises or structure or

buildings for the offences under Act, 2017/2018 is concerned for

the reasons that State of Bihar consists about 37 Districts and in

each of the District, the concerned Collector would evolve

his/her own mode of confiscating procedure and auctioning

seized property/properties including motor vehicle etc as per his

discretion. There will be no uniformity in application of

provision of the Act, 2016. This would frustrate the object of the

Act, which is to enable speedy and effective adjudication with

regard to confiscation of the illicit liquor and other related

articles and the means used for committing the offence.

Moreover, Rule 12(B) of the Rules, 2021 for an Patna High Court CWJC No.10944 of 2023 dt.25-08-2023

additional procedure for confiscation, a procedure which is less

cumbersome and more expeditious than the procedure of

prosecution and at the same time, assuring necessary safeguards

to the affected persons.

13. Accordingly, the writ petition stands allowed.

(P. B. Bajanthri, J)

(Arun Kumar Jha, J) Ashish/-

Himanshu/-

AFR/NAFR                NA
CAV DATE                NA
Uploading Date          01.09.2023
Transmission Date       NA