Patna High Court
Bipul Ghosh vs The State Of Bihar on 18 May, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2324 of 2023
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Bipul Ghosh, S/o Bhawani Ghosh, R/o Villa. - Indrapalli, Kadam Talla, Shiv
Mandir, P.S. - Nazalbari, District- Darjeeling (West Bengal).
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Excise
and Registration, Govt. of Bihar, Patna.
2. The Chief Secretary, Govt. of Bihar, Excise and Registration Department,
Patna.
3. The Excise Commissioner, Excise, Patna.
4. The District Magistrate Araria.
5. The SHO, Bairgachi Police Station, Araria.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Nishant Kumar Sinha, Advocate
For the Respondent/s : Mr. Vikash Kumar, SC-11
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 18-05-2023
1. The petitioner is aggrieved with the confiscation of
his vehicle and auction sale.
2. The petitioner's vehicle was intercepted and 645
litres of illicit was recovered from the vehicle. The vehicle was
a Pickup Van bearing Registration No. WB-73F-1725, Chassis
No. TBK4D606178, Engine No. MAIZTBKK6E26398. An FIR
was registered on 01.01.2022 as Araria (Bairgachi) P.S. Case
No. 02 of 2020 under Sections 30(a) and 38 of the Bihar
Prohibition and Excise Act (hereinafter referred to as "Act").
Patna High Court CWJC No.2324 of 2023 dt.18-05-2023
The confiscation order was passed on 16.01.2021 in
Confiscation Case No. 466 of 2020. An appeal was filed in
which there was a remand ordered on 11.03.2022 in Excise
Appeal Case No. 113 of 2022 and an application was filed by
the petitioner under Rule 12A of the Bihar Prohibition and
Excise Rules (hereinafter referred to as "Rules"). On
19.10.2022, Annexure-3 order was passed asking the petitioner
to remit Rs. 45,000/-, being 50 percent of the insured value. The
petitioner remitted it, as is evident from Annexure-3 but the
vehicle was not handed over. Later it has come in a notice of the
authority that the vehicle was auctioned on 17.08.2021.
3. Learned counsel for the petitioner submits that the
vehicle has to be returned to him, he having complied with the
order under Rule 12A of the Rules. It is also submitted that on
the alternative, the amounts in auction sale has to be returned to
him along with the amounts deposited under the order dated
19.10.2022.
4. We have to specifically observe that the vehicle
was carrying 645 litres of illicit liquor, clearly an offence under
the Act. The vehicle was confiscated on 16.01.2021 but the
appeal was filed only on 11.02.2022. It was in the meanwhile
i.e. in the one year period that the vehicle was sold on
Patna High Court CWJC No.2324 of 2023 dt.18-05-2023
17.08.2021, that too about 7 months after the order of
confiscation. The petitioner has not participated in the
confiscation case despite notices issued to him by newspaper
publication.
5. In fact, the learned counsel for the petitioner has an
explanation that no appeal was filed due to the pandemic and
the Hon'ble Supreme Court had lifted the limitation applicable.
6. It has to be noticed that the vehicle was in the possession
of the confiscating authority for 7 months. The vehicle is a
Pickup Van and definitely the owner would have enquired about
the whereabouts of the van when it was not found. Despite the
pandemic situation having not been completely mitigated, there
was no lockdown as such and the petitioner had ample time to
file an appeal before the authority. The fact that an appeal was
filed after more than 1 year restraints us from granting any order
as sought for by the petitioner. It is not the question of limitation
that arises here, but the sale of the vehicle, after reasonable time
from the confiscation.
7. We have to notice that the confiscation proceedings on
remand resulted in an order under Rule 12A of the Rules, which
was not proper since the vehicle was already sold. The
confiscating authority ought to have enquired whether the
Patna High Court CWJC No.2324 of 2023 dt.18-05-2023
vehicle is still in the possession of the seizing authority, before
such order was passed. The petitioner also has paid Rs. 45,000/-
as on 19.10.2022. In such circumstances, we direct that the
amount of Rs. 45,000/- remitted by the petitioner, shall be
returned with 5 percent interest starting from 19.10.2022 to the
date of payment, at any rate within a period of 1 month from the
date of this judgment. There is no reason to return the vehicle to
the petitioner or even the sale proceeds since admittedly it was
seized with a large quantity of contraband, intended presumably
for sale within the State, where there is prohibition in force.
Confiscation is a consequence of the Act, for its contravention
and the petitioner having not alertly agitated his cause, there is
no question of reversing such consequence and the resultant
sale.
8. Writ application would stand disposed of with the above
directions.
(K. Vinod Chandran, CJ)
( Madhuresh Prasad, J)
shashank/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.05.2023
Transmission Date NA
