Sanjeev Kumar vs The State Of Bihar And Ors
2023 Latest Caselaw 4677 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.12728 of 2018
     ======================================================

Sanjeev Kumar, Son of Ghan Shyam Singh, Resident of Village- Maur, Police Station- Barbigha, District- Sheikhpura.

... ... Petitioner/s Versus

1. The State Of Bihar through the Principal Secretary, Department of Excise, Government of Bihar, Patna.

2. The District Magistrate, Sheikhpura.

3. The Senior Superintendent of Police, Sheikhpura.

4. The Officer-in-Charge-cum-S.H.O., Barbigha Police Station, Barbigha, Sheikhpura.

5. The Investigating Officer, Barbigha, District- Sheikhpura.

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr.Bipin Kumar, Advocate For the Respondent/s : Mr.Vivek Prasad, GP-7 Ms. Supragya, AC to GP-7

CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)

Date : 18-09-2023

Learned counsels for the respective parties have been

heard on the last date of hearing.

2. The petitioner has filed the instant writ petition for a

direction to the respondent authorities to unseal/unlock the

house of the petitioner, which has been sealed/locked by the Patna High Court CWJC No.12728 of 2018 dt.18-09-2023

respondent authorities in connection with Excise Case No.741

C2/2017 dated 30.10.2017, instituted under Section 30 (a) of

Bihar Prohibition and Excise Act, 2016 (hereinafter referred to

as 'the Act') against the son of the petitioner.

3. Briefly stated, the case of the petitioner is that on

the basis of secret information received by the Excise

Department that in the house of accused Piyush Kumar @ Bittu,

son of the petitioner, huge quantity of India made foreign liquor

was illegally stored, a raid was conducted in that house and total

720 liters of India made foreign liquor was recovered from two

rooms of the said house and the house was locked by the excise

officials. Thereafter, Excise Case No.741 C2/2017 has been

registered under Section 30 (a) of the Act against Piyush Kumar,

son of the present petitioner. Aggrieved by the action of the

respondent authorities in sealing/locking the house and

starting/initiating the confiscation proceeding against it, the

petitioner has come before this Court for release of his house.

4. The learned counsel appearing on behalf of the

petitioner submitted that from bare perusal of the complaint, it is

evident that the petitioner is not named in the complaint case.

The son of the petitioner has been made accused in the

complaint case. The learned counsel further submitted that the Patna High Court CWJC No.12728 of 2018 dt.18-09-2023

petitioner is bonafide owner of the house in question and has

filed documents in support of his claim. The action of the

respondent officials is arbitrary and illegal in view of the fact

that in two rooms, alleged liquor was recovered but the entire

house was sealed. The learned counsel further submitted that

apart from named accused, other persons are also residing in the

house and due to locking and sealing of entire house, all the

inmates are facing a problem. The learned counsel further

submitted that on 18.04.2018, the petitioner has received a

notice dated 18.04.2018 in Confiscation Case No. 28 of 2018.

The learned counsel further submitted that there is not even an

iota of evidence which could suggest that the petitioner was

facilitating the culprits or providing access for storage of

incriminating articles. Either directly or indirectly, the petitioner

has not contravened Section 30 of the Bihar Prohibition and

Excise Act, 2016 and for this reason his house is not liable to be

sealed. The action of the authorities is arbitrary, unreasonable

and shows complete non-application of mind. Thus, the learned

counsel submitted that the instant writ petition may be allowed

and the relief sought by the petitioner may be granted to him.

5. Per contra, the learned counsel for the respondents

submitted that the son of the petitioner is named in the official Patna High Court CWJC No.12728 of 2018 dt.18-09-2023

complaint case for recovery of illicit India made foreign liquor

from the house of the petitioner. Moreover, only two rooms,

from where recovery has been made, have been sealed. Thus,

the learned counsel submitted that there is no merit in the instant

writ petition and the same be dismissed.

6. Perused the record.

7. From perusal of records, it appears that the present

case has been filed on 05.07.2018 after serving a copy of the

same upon the State on 16.08.2018. But when no counter

affidavit has been filed by the State, the matter was adjourned

on 24.04.2023 and 08.08.2023. Despite the aforesaid

adjournments, no counter affidavit has been filed by the State.

Now this Court is required to decide the matter on the material

available on the record without waiting further for the counter

affidavit.

8. Prima facie, it appears from the perusal of the

official complaint that though the premises owned by the

petitioner may be involved in storage of illicit liquor, apparently

involvement of the petitioner is not so forthcoming from the

facts and circumstances of the case. Moreover, the son of the

petitioner has been arraigned as an accused and he will have to

face rigours of trial and final decision of his innocence/guilt has Patna High Court CWJC No.12728 of 2018 dt.18-09-2023

to be taken by the learned trial court. Further, it appears from the

records that a confiscation proceeding vide Confiscation Case

No.28 of 2018 has been initiated for confiscation of the house of

the petitioner in which a notice dated 18.04.2018 has been

issued to the son of the petitioner to appear before the Collector,

Sheikhpura on 27.04.2018.

9. Further, there is no material on record which could

suggest that the petitioner was facilitating and helping his

accused son for storage of incriminating articles. Either directly

or indirectly, the petitioner has not contravened Section 30 of

the Bihar Prohibition and Excise Act, 2016 and for this reason

his house is not liable to be sealed.

10. Recently, this Court vide judgment dated

14.09.2023 passed in CWJC No.17894 of 2022 (Sunita Sinha

vs. The State of Bihar and Ors.) has deprecated the tendency of

the authorities to confiscate the premises found involved in

trade of illicit liquor in an arbitrary manner and putting

unreasonable terms and conditions for its release and we further

pointed out the lacunae in the relevant provisions of law

regarding seizure, sealing and confiscation of premises.

Apparently, the case of the petitioner is covered under one of the

illustrations given by us.

Patna High Court CWJC No.12728 of 2018 dt.18-09-2023

11. Since the petitioner is claiming to be the owner

of the sealed house, it is directed that pending finalization of the

confiscation proceedings, the aforesaid house of the petitioner

shall be unsealed and possession be handed over to him subject

to undertaking that he will not alienate or deal with the property

in question or create a third party interest during the pendency

of the confiscation proceedings or prejudice the right of the

State in the confiscation proceedings, if the same has not

already been completed.

12. However, it is made clear that this order would

not be a hurdle either for the State to proceed with the

confiscation proceeding or for the petitioner to avail his rights in

such proceedings. Both the parties are at liberty to proceed in

the matter in accordance with law. The confiscating authority is

directed to examine whether confiscation proceedings are in

accordance with the procedure prescribed under the Excise Act

or not, since such proceedings are time bound. Further, the

petitioner was heard in such matter or not, since confiscation of

premises has a civil consequences. On this issue, concerned

authority is directed to take note of recent decision of the

Hon'ble Supreme Court viz., State Bank of India and Ors. v.

Rajesh Agarwal and Ors., (2023) 6 SCC 1.

Patna High Court CWJC No.12728 of 2018 dt.18-09-2023

13. With the aforesaid observations and directions,

this writ petition stands allowed.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) V.K.Pandey/-

AFR/NAFR                AFR
CAV DATE                11.09.2023
Uploading Date          18.09.2023
Transmission Date       N.A.