Patna High Court
Ganesh Prasad vs The State Of Bihar on 6 December, 2023
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9347 of 2021
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Ganesh Prasad, son of Kishori Saw, resident of Baeri Bagicha, Begumpur,
P.S.-Malsalami, District-Patna-800009.
... ... Petitioner
Versus
1. The State of Bihar through Principal Secretary, Excise Department, Govt. of
Bihar, Patna.
2. The Principal Secretary, Excise Department, Government of Bihar, Patna.
3. The Excise Commissioner, Govt. of Bihar, Patna.
4. The District Magistrate cum Collector, Patna.
5. The Deputy Collector, Patna.
6. The Superintendent of Police, Patna.
7. The Officer-in-Charge, Malsalami Police Station, Patna.
8. The Investigation Officer, Malsalami Police Station, P.S. Case No. 01 of
2020, P.S.-Malsalami, District-Patna.
9. Shashi Bhushan Singh S/o Parshuram Singh Resident of village- Bhabua P.S
Ara, Dist- Bhojpur, Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. P.C. Agrawal, Advocate
Mr.Alok Kumar Jha, Advocate
For the State : Mr. Vivek Prasad, G.P.7
Ms. Supragya, AC to GP-7
Ms. Roona, AC to GP-7
Mr. Sanjay Kumar, AC to G.P.7
Mrs. Manisha Singh, AC to GP-7
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 06-12-2023
In the instant petition, petitioner has prayed for the
following relief(s):
"a) For issuance of writ in the nature
of certiorari for quashing of the impugned order
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
2/9
dated 23.02.2021 passed by the respondent number
2 in Excise Revision Case No. 02 of 2021;
b) For issuance of a writ or order or
direction in the nature of mandamus to the
respondent authorities to release the seized
Mahindra Bolero pick-up vehicle of the petitioner
bearing registration number Mahindra Bolero
BR01GG-3765;
c) For issuance of a writ or order or
direction restraining the respondent department
from not taking any coercive action against the
seized vehicle;
d) For issuance of writ or order or
direction to the respondent department to restrain
to not to put the Bolero Pick - up vehicle bearing
registration no. BR-01-GG-3765 on auction sale
during the pendency of the petition;
e) For grant of any other relief or
reliefs to which the petitioner is found entitled in
the facts and circumstances of this case."
2. On an earlier occasion, petitioner had filed
C.W.J.C. No. 4768 of 2020 in which he had sought for release
of the motor vehicle registration No. BR-01GG-3765 (Mahindra
Bolero Pickup), which was seized on 01.01.2020 in Malsalami
P.S. Case No. 01 of 2020 by the Officer-in-Charge of Malsalami
Police Station for the offences under Section 30(a) of Bihar
Prohibition of Excise (Amendment) Act, 2018 (for short Act).
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
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This Court disposed of the petitioner's writ petition while
directing the petitioner to appear before the appropriate
authority on 04th August, 2020 at 10.30 A.M. Due to Covid -19,
petitioner could not appear on the date fixed by this Court. On
the other hand, he had appeared only on 15.09.2020, the date on
which the confiscation proceedings was concluded. Thereafter,
he had preferred Appeal & Revision in which proceedings, he
has suffered orders on 22.12.2020 and 23.02.2021. In this
backdrop, the petitioner has presented this petition. During the
pendency of Revision Petition, the official respondent
proceeded to auction the subject matter of motor vehicle on
21.01.2021
and realized a sum of Rs. 5,15,000/-.
3. Learned counsel for the petitioner submitted that
if he fails to appear on 04th August, 2020 at 10.30 A.M., the
concerned authority should have issued a notice for next date for
appearance, while taking note of the fact that Covid-19 was in
vogue, thus petitioner has been denied the benefit of appearance
in the confiscation proceedings. Further, it was pointed out that
having regard to the seizure of the motor vehicle on 01.01.2020
followed by report communicated to the District Magistrate on
15.02.2020 and its disposal of confiscation proceedings dated
15.09.2020 there is a delay in conclusion of confiscation
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
proceedings. Under Section 58 of the Act, 2016, Confiscation
Authority was required to decide the confiscation proceeding
within a reasonable period of time. The over all time taken by
the confiscation proceedings is more than seven months from
the date of receipt of report from the jurisdiction Police
authority on 15.02.2020 pursuant to the seizure of the vehicle
dated 01.01.2020. It is also submitted that 1.80 litre of liquor
was seized for which the official respondent cannot auction the
subject matter of motor vehicle and realize the auction amount
of Rs. 5.15 lakhs.
4. It is also submitted that during the pendency of
the proceedings State Government have introduced Bihar
Prohibition and Excise Rules, 2021, (amended) Rules 2022 and
(amended) Rules 2023, respectively. Rule 12-A is in respect of
seizure of motor vehicle and imposition of penalty etc. The
maximum penalty is a sum of Rs. Five Lakhs. Having regard to
the quantum of liquor seized is 1.80 litre & indirectly imposing
penalty of Rs. 5.15 Lakh would be too harsh and arbitrary.
5. Per contra, learned counsel for the respondent
resisted the aforementioned contentions and submitted that
having regard to the provisions of the Bihar Prohibition and
Excise Act, 2016, Bihar Prohibition of Excise (Amendment)
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
Act, 2018 read with Bihar Prohibition and Excise Rules, 2021,
amended Rules 2022 and 2023, the Rules are not applicable to
the case in hand having regard to the date of offence is
01.01.2020 and Confiscation proceedings and Appellate
Authority's order are dated 15.09.2020 and 22.12.2020,
respectively, therefore, Rules introduced in the year 2021 has no
application, consequently there are no infirmities in all the three
proceedings undertaken by the competent authority in
Confiscation, Appeal and Revision, hence, no interference is
called for.
6. Heard learned counsel for the respective parties.
7. Undisputed facts are that subject matter of motor
vehicle of the petitioner was involved in Malsalami P.S. Case
No. 01 of 2020 for the offence under Section 30(a) of Bihar
Prohibition of Excise (Amendment) Act, 2018. This Court had
directed the petitioner to appear before the appropriate authority
on 04th August, 2020 at 10.30 A.M. He could not appear for the
reasons that Covid-19 was in vogue. Therefore, he had appeared
on 15.09.2020, the date on which the confiscation proceedings
were concluded. In all fairness, District Magistrate should have
provided ample opportunity of petitioner's appearance with
reference to the fact that Covid-19 was in vogue. On the other
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
hand, he has proceeded without providing opportunity of
hearing to the petitioner. Further, it is to be noticed that in terms
of Section 58 of the Bihar Prohibition and Excise Act, 2016, the
District Magistrate was required to decide the Confiscation
proceedings within a reasonable period of time as held by
Courts from time to time in the absence of time limit stipulated
in the statue.
8. Further, we have noticed that District Magistrate,
for concluding the confiscation proceedings, has taken seven
months from the date of receipt of the report of the Police vide
report dated 15.02.2020. In other words, he had ample time of
seven months to hear the petitioner. Merely he fails to appear on
4th August, 2020 at 10.30 A.M. the District Magistrate failed to
provide opportunity to the petitioner. Further, petitioner has
suffered an order before the Appellate Authority and Revisional
Authority and subject matter of motor vehicle was auctioned
and an amount of Rs. 5.15 Lakh has been realized by the Excise
Department. In this backdrop, what remains is whether
imposition of penalty of confiscation of motor vehicle and
auctioning the same and realizing the amount of Rs. 5.15 Lakh
is fair or not. It is arbitrary for the simple reason that 1.80 litre
of liquor has been seized for which imposition of indirect
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
penalty of Rs. 5.15 Lakh would be too harsh. No doubt as on
15.09.2020, there were no provisions for imposition of penalty
other than seizure of the motor vehicle and auctioning the same
and realizing the auction amount. Whereas Section 61 of Bihar
Prohibition and Excise Act, 2016 deals with confiscated articles
to vest with the Collector. Section 61 of the Act reads as under:
"61. Confiscated articles to vest with the
Collector.- When an order for confiscation of any
property has been passed under Section 58 and
such order has become final in respect of the whole
or any portion of such property, such property or
portion thereof, as the case may be, shall vest with
the State Government free from any
encumbrance."
9. Reading of Sub-Section 5 of Section 58 &
Section 61, resorting confiscated motor vehicle in auction may
not be correct. In other words if huge quantity of liquor is seized
in such manner auction of motor vehicle may be warranted. The
State Government had realized implications in not identifying
the penalty in the Excise Act and proceeded to provide
imposition of penalty Clause under Bihar Prohibition and Excise
Rules, 2021 in which the maximum penalty is a sum of Rs. Five
Lakh. If the same yardstick is taken into consideration for the
purpose of reducing the burden on the petitioner, we are of the
opinion that seizure of 1.80 litre of liquor, penalty would be a
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
sum of Rs. One Lakh would suffice. In fact, Writ Court has no
jurisdiction to determine the penalty. Having regard to the fact
that Bihar Prohibition and Excise Act, 2016 as on 15.09.2020,
the date of confiscation proceedings have been concluded. There
are no penal clause except seizure of the vehicle and auction.
Auction of motor vehicle under Section 58 (5) & reading of
Section 61 they are over laping each one. We are posing
hypothetical questions for ourselves, suppose a two wheeler was
involved in transportation of liquor to the extent of same
quantity, in that event, if the subject matter of two wheeler is
auctioned and realized a sum of rupees less than one lakh in that
event there would be discrimination insofar as proceedings of
confiscation and realization of auction amount. Therefore, we
are compell to interfere with the indirect penalty imposed on the
petitioner to the extent of Rs. 5.15 Lakhs with reference to
realization of auction amount.
10. Therefore, the confiscation proceedings is
treated to the extent of imposition of penalty of Rs. One lakh
would suffice and remaining Rs. 4.15 Lakh shall be released in
favour of the owner of the subject matter of motor vehicle after
due verification like identification and other materials. The
concerned authority is hereby directed to issue Demand Draft in
Patna High Court CWJC No.9347 of 2021 dt.06-12-2023
favour of the owner of the subject matter of the motor vehicle
under acknowledgment. The above exercise shall be completed
within a period of four months from the date of receipt of this
order. The Confiscation Proceedings, Appeal and Revision
orders are modified to the above extent.
11. With the above observation, writ petition is
allowed in part.
(P. B. Bajanthri, J)
( Ramesh Chand Malviya, J)
Manish/-
AFR/NAFR NAFR
CAV DATE 12.12.2023
Uploading Date N.A
Transmission Date N.A
