Patna High Court
Manjeet Singh vs The State Of Bihar on 11 January, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16073 of 2023
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Manjeet Singh son of Late Tara Singh, Proprietor of M/S Blus Horses of
Tenth Master, Resident of K111A, Krishna Park Ext. Tilak Nagar, New Delhi-
110018, through his authorized representative Mr. Yogendra (Male), aged
about 27 Years Son of Sri Veerpal Singh, resident of Village Saraiya, P.O.-
Aram Saray, Police Station-Bhongaon, Distt.-Mainpuri, Uttar Pradesh-Pin-
Code-205262.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Prohibition, Excise and
Registration Department, Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Prohibition, Excise and Registration
Department, Govt. of Bihar, Patna.
3. The Excise Commissioner, Prohibition, Excise and Registration Department,
Govt. of Bihar, Patna.
4. The District Magistrate-Cum-Collector, Kishanganj.
5. The Superintendent of Police, Kishanganj (Bihar)
6. The SHO-Cum-Officer-in-Charge, Bahaduarganj Police Station, District-
Kishanganj (Bihar).
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sushil Jhunjhunwala, Advocate
For the Respondent/s : Mr. Kumar Manish, S.C. 5
Mr. Kumar Pankaj, AC to SC 5
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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 : 11-01-2024
In the instant petition, petitioner has prayed for the
following reliefs:-
(i) In the nature of certiorari quashing the
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
2/10
order of learned Excise Commissioner
without his signature, passed in Excise
Appeal No. 105 of 2023 on dated (illegible)
07.08.2023
bearing Memo No. bearing
Memo No. Utpad Appeal wad sankhya -
105 / 2023 - / 07 Patna, Dated 07.08.2023.
(ii) In the nature of certiorari quashing the
order dated 21.03.2023 passed by the
District Magistrate - cum - Collector,
Kishanganj in Confiscation Case No. 252 of
2023 in respect of release the vehicle /
Container Truck in question stands seized
since 01.02.2023.
(iii) In the nature of mandamus directing and
commanding the respondents to release the
Container Truck bearing registration
number NL01-AB 6678 which stands seized
since 01.02.2023 in connection with
Bahadurganj P.S. Case No. 36 of 2023
registered under Section 30(a) of the Bihar
Prohibition & Excise Act 2016 (For short "
The Excise Act.") alleging that upon
interception of the aforesaid container truck
in the Cabin, where the Driver and Khalasi
were having Indian Made Foreign Liquor of
quantity 750 ml. And 375 ml. Totaling 1.125
Liter foreign liquor kept in a black bag, was
recovered.
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
(iv) In the nature of mandamus directing and
commanding the respondents not to put the
seized container truck of the petitioner on
public auction.
(v) Other relief or reliefs to which the
petitioner is found to be entitled.
2. A Truck bearing No. NL01 - AB 6678 was involved in excise
offences and P. S. Case No. 36 of 2023 was registered on
01.02.2023 for the offences under Section 30(a) of the Bihar
Prohibition and Excise Act, 2016 (for short Excise Act). The
quantum of the seizure of the liquor is 750ml and 375ml of 2
bottles of liquor. In this regard truck driver and Khalasi were
involved for the aforementioned offences. The official
respondents proceeded to initiate confiscation proceedings and
it was concluded in confiscation of the aforementioned motor
vehicle. The petitioner - owner has remedy of invoking Rule
12A of the Bihar Prohibition and Excise Rules, 2021 read with
amended Rules in the year 2022 and 2023. In these proceedings,
the concerned District Magistrate imposed fine of a sum of Rs. 8
lakhs on 21.03.2023. Still aggrieved by the order of the
Collector, petitioner preferred appeal before the Appellate
Authority in which the Appellate Authority has modified the
fine order of the Collector to the extent of Rs. 5 lakhs from Rs. 8
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
lakhs on 07.08.2023, hence the present petition.
3. Learned counsel for the petitioner submitted that
quantum of fine or penalty of sum of Rs. 5 lakhs read with the
quantity of liquor seized, namely, 750ml and 375ml would be
too harsh and it is not commensurate with the quantity. It is also
submitted that while determining and imposing fine the
concerned authority was required to take note of quantum of the
liquor, 10 per cent of the insurance value of involved motor
vehicle. The insured value of the vehicle cannot be taken into
consideration for the purpose of determining and imposing fine.
It is submitted that if the insurance value is taken into
consideration for the purpose of determination and imposition of
fine, it would be arbitrary for the reasons that if the same
quantity is seized alongwith two wheeler vehicle in that event if
the value of the insurance of the two wheeler is taken in that
event determination of fine would be lessor than what has been
imposed in the present case. Therefore, modification of fine of
Rs. 8 lakhs to that of Rs. 5 lakhs by the appellate authority is
arbitrary and illegal.
4. Per contra, learned counsel for the respondent resisted
the aforementioned contention and submitted that Collector has
taken note of criteria under Rule 12A. Further, appellate
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
authority has applied his mind in modifying the penalty from
Rs. 8 lakhs to that of 5 lakhs, therefore, the petitioner has not
made out a case so as to interfere with the action of the
respondents which is the subject matter of the present petition.
5. Heard the learned counsels for the respective parties.
6. Undisputed facts are that subject-matter of vehicle -
truck read with the fact that Indian Made Foreign Liquor of
quantity of 750ml and 375ml was seized from the
aforementioned vehicle when the driver of the truck and khalasi
were involved in the matter.
7. No doubt petitioner had suffered an order with reference
to confiscation proceedings under Section 56 and in appeal
under Section 92. Thereafter, he has simultaneously exhausted
remedy under Rule 12A of the Bihar Prohibition and Excise
Rules, 2021 read with amended Rules 2022 and 2023
respectively. He has invoked rule 12A and it is the Collector
who has passed an order while imposing fine of Rs. 8 lakhs on
21.02.2023. The petitioner aggrieved by such imposition of
penalty, preferred the appeal before the appellate authority.
Appellate authority modified the penalty of Rs. 8 lakhs to that of Rs.
5 lakhs, hence the present petition. It is necessary to reproduce sub-
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
Rule (2) of Rule 12A and it reads as under:-
Substitution of sub-rule (2) of Rule 12A
(Release of Vehicles, Conveyance etc on
Payment of Penalty) of Bihar Prohibition
and Excise Rules, 2021: - The sub-rule (2)
of Rule 12A (Release of Vehicles,
Conveyance etc on Payment of Penalty) of
Bihar Prohibition and Excise Rules, 2021
shall be substituted with the following: -
"(2) The amount of penalty shall be as
decided by the Collector or the Officer
authorized by him. While imposing the
penalty, he shall have due regard to the
quantity of intoxicant recovered, involvement
of the vehicle owner and the latest insurance
value of the vehicle. In no case, the penalty
should be less than 10 % of the insured
value of the vehicle and more than Rs. 5
lakhs. The insured value is the value of the
vehicle as assessed by the insurance
company. Where, the insured value is not
available or the Collector or the Officer
authorized by him has reason to believe that
the vehicle is undervalued, he shall get the
valuation done by the District Transport
Officer.
In any case, the Collector shall not wait
beyond 15 days from the date of seizure and
if during this period, the accused / owner
does not pay up the penalty, he shall proceed
with the confiscation / auction."
underline supplied.
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
8. No doubt the Collector has taken note of the criteria
mentioned under Rule 12A for the purpose of imposition of
penalty of Rs. 8 lakhs. However, it was not commensurate with
the quantum of liquor seized. The same has been taken note of
by the appellate authority and he has modified from Rs. 8 lakhs
to that of Rs. 5 lakhs. It is to be noted that neither of the
authority has noticed that "involvement of the vehicle owner"
on the other hand quantum of intoxicant recovered and latest
insurance value of the vehicle has been taken. What would be
effect of non-involvement of the vehicle owner has not been
decided.
9. We are of the view that even imposition of Rs. 5 lakhs
would be too harsh for the reasons that quantum of liquor is
750 ml to 375 ml. Merely, it was recovered from a truck i.e.
heavy motor vehicle. The concerned authorities were not
required to rely on insured value of the truck. We are posing
question ourselves, suppose the same quantity of 750 ml and
375 ml was seized by the concerned officials from two wheeler
vehicle in that event insured value would be too low in
thousands and the yardstick in so far as imposition of fine would
be different like in thousands, therefore impugned order is
arbitrary. Therefore, quantum of liquor seized is material
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
information which is required to be taken note of. For example
in the present case itself. It may be for the purpose of
consumption of driver of the truck and khalasi and they must
have stored 750 ml and 375 ml. In other words, we can draw
inference that the aforementioned 750ml and 375ml cannot be
for commercial purpose so as to impose exemplary fine on the
owner of the truck. These material information is required to be
taken note of by the concerned authorities like appellate
authority; simply they cannot resort to 10 per cent of the insured
value of the motor vehicle read with the quantum of liquor
seized while ignoring another criteria of involvement of the
vehicle owner.
10. Having regard to these facts and circumstances, we are
of the view that imposition of modified fine of Rs. 5 lakhs by
the appellate authority is also on higher side in view of the fact
that 750 ml 375 ml of liquor was seized from a driver and
khalasi of the truck. Therefore, the impugned order dated
07.08.2023 is set aside and matter is remanded to the appellate
authority for a fresh consideration to impose lessor fine in
commensurate with quantum of liquor seized of 750ml and
375ml. He has to take note of the fact that seized liquor may be
for consumption of personal use of driver and khalasi and not
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
for commercial. Therefore, reasonable fine may be imposed
while modifying the order of the Collector dated 21.03.2023.
The above exercise shall be completed while passing a fresh
order in the appeal within a period of 2 months from the date of
receipt of this order. In the meanwhile, the concerned authorities
are hereby directed to not to proceed with any auction
proceedings for non-remittance of fine of Rs. 5 lakh ordered by
the appellate authority. Accordingly, Excise appeal No. No. 105
of 2023 stands restored on the file of the Excise
Commissioner's office and matter is remanded to proceed afresh
in the Excise Appeal No. 105 of 2023 within a period of 2
months from the date of receipt of this order.
11. The writ petition stands allowed in part.
12. At this stage, learned counsel for the State submitted that
appellate authority hands are tied in view of the statutory
provision under Rule 12A. Rule 12A in respect of criteria of 10
per cent of the insured value of the vehicle shall not be taken
into consideration in the present case and only quantity of
liquor, since yet another criteria of involvement of the vehicle
owner is not forth coming.
13. Having regard to the factual aspects of the matter, the
Patna High Court CWJC No.16073 of 2023 dt.11-01-2024
aforesaid facts shall be taken note of and the appellate authority
is hereby directed to impose reasonable lessor fine and order for
release of subject matter of motor vehicle at the earliest, since
vehicle is seized from 01.02.2023.
(P. B. Bajanthri, J)
( Ramesh Chand Malviya, J)
saurabhkr/-
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