M/S Zenith Corporation vs The State Of Bihar
2023 Latest Caselaw 2446 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Civil Writ Jurisdiction Case No.7374 of 2023
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M/s Zenith Corporation, 5-A, Jain Nagar, Meerut, U.P.- 25002, through its proprietor Kapil Maheshwari (male) aged about 39 years, S/o Late J.L. Maheshwari, Resident of 221, New Prempuri, Railway Road, Meerut, U.P- 250002

... ... Petitioner/s Versus

1. The State of Bihar through the Additional Chief Secretary, Prohibition Excise and Registration Department, Bihar, Patna.

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

3. The Excise Commissioner, Excise and Prohibition Department, Govt. of Bihar, Patna.

4. The Assistant Excise Commissioner, Excise and Prohibition Department, Govt. of Bihar, Patna.

5. The District Magistrate, Sitamarhi.

6. The Senior Deputy Collector, Sitamarhi.

7. The Superintendent of Police, Sitamarhi.

8. The Excise Superintendent, Sitamarhi.

9. The Excise Inspector, Sitamarhi.

10. The Station Head Officer, P.S.- Sitamarhi.

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

For the Petitioner/s : Mr.Shambhu Sharan Singh, Advocate Mr.Rohit Singh, Advocate For the Respondent/s : Mr.Vivek Prasad (GP-7) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Patna High Court CWJC No.7374 of 2023 dt.17-05-2023

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 17-05-2023

The petitioner is concerned with the confiscation of

articles seized in the course of inspection conducted by the

Excise Officials on 28.02.2022. During inspection, 2193.450

litres of IMFL was recovered. A truck bearing Registration No.

UP21CN-7847 was confiscated. The contraband was hidden

behind the surgical hospital items which were transported in the

truck. The petitioner approached this Court with CWJC No.

6889 of 2022 seeking release of the 217 Nag of surgical items

along with other items used in the hospital for the patients like

Fabric Bundles, Gauze Than, Bandage Than, Pillow cover,

Mosquito net, Blanket, Bedsheets and Bed Cover etc. A

Division Bench of this Court by judgment dated 10.05.2022

directed the petitioner to approach the Special Court Excise

under Section 451 of the Cr.P.C. The following direction was

issued by the Division Bench:-

"As recovered and seized surgical items along with other items used in the hospital for patients, like Fabric Bundles, Gauze Than, Bandage Than, Pillow cover, mosquito net, blanket, bed sheets and bed cover is not liable for confiscation under section 56 of the Excise Act, as such, bar of jurisdiction in confiscation under section 60 of the Patna High Court CWJC No.7374 of 2023 dt.17-05-2023

Excise is not applicable and the special court excise has jurisdiction to pass order for release of aforesaid seized materials during pendency of trial.

The Exclusive Special Excise Court -II, Sitamarhi

however, rejected the prayer for release as per Annexure-7;

which according to us is a clear contempt of the order passed by

this Court. Again in appeal, the Appellate Authority dismissed

the appeal filed against the confiscation order (Annexure-5)

produced as Annexure-8. A further revision carried was also

unsuccessful as per Annexure-9.

Learned Government Advocate specifically refers to

Section 56 of the Excise Act where confiscation of seized items

also included any other items having bearing with the case. It is

the submission of the learned Government Advocate that when

the vehicle was inspected, the contraband was hidden under the

surgical items seized by the Seizing Officer. In fact, there was a

direct nexus with the crime of transportation of contraband since

the contraband was transported in the garb of surgical items

which were placed on top to hide the contraband.

We are inclined to agree with the learned

Government Advocate in so far as the interpretation of Section

56 is concerned, however, we notice that a Division Bench of Patna High Court CWJC No.7374 of 2023 dt.17-05-2023

this Court had held otherwise looking at the facts and also

Section 56. The finding of the Division Bench is extracted

hereinabove. In the above circumstances, we are of the opinion

that in so far as the specific surgical hospital items referred to by

the Division Bench, there cannot be any confiscation

proceedings under Section 56 of the Excise Act. Though, we

hasten to add that it is not a declaration of law as such, we also

notice that the Government has not chosen to file any further

proceedings from the order of the Division Bench at Annexure-6

and hence it has attained finality. We are hence of the view that

the surgical hospital items recovered on seizure of the

contraband has to be released to the petitioner as per the order

passed at Annexure-6.

We are, however, distressed by the fact that the

Special Judge, Exclusive Special Excise Court-II, Sitamarhi and

also the Additional Chief Secretary, Bihar, Patna who passed the

revisional order (Annexure-9) having noticed the order in

CWJC No. 6889 of 2022 (Annexure-6) refused to follow the

same. We are of the opinion that prima facie, there is contempt

of the orders of this Court by both the said Officers. We hence

direct the Registry to issue suo motu contempt proceedings

against the Officer who passed Annexure-7 order and the Patna High Court CWJC No.7374 of 2023 dt.17-05-2023

Officer who passed Annexure-9 order, after verifying their

details and suo moto contempt shall also contain the annexures

produced in the above case.

The writ petition stands disposed of with the above

directions.

(K. Vinod Chandran, CJ)

(Madhuresh Prasad, J) Anushka/PKP AFR/NAFR CAV DATE Uploading Date 19.05.2023 Transmission Date