Patna High Court
Lal Jhari Devi @ Laljhari Devi @ Lalghari ... vs The State Of Bihar on 24 February, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15357 of 2024
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1. Lal Jhari Devi @ Laljhari Devi @ Lalghari Devi, wife of Late Bunni Pasi @
Buni Pasi @ Bunni Choudhary @ Late Buchi Pasi, Resident of Khajuriya,
Ward No. 25, P.S. Gopalganj Town, District- Gopalganj.
2. Kanhaiya Pasi, Son of Late Buni Pasi @ Bunni Pasi @ Bunni Choudhary @
Late Buchi Pasi, Resident of Khajuriya, Ward No. 25, P.S. Gopalganj Town,
District- Gopalganj.
... ... Petitioners.
Versus
1. The State of Bihar.
2. The District Magistrate-cum-Collector, Gopalganj.
3. The Excise Superintendent of Police, Gopalganj.
4. The Excise Commissioner, Govt. of Bihar, Patna.
5. The Superintendent of Police, Gopalganj.
6. The Station House Officer, Gopalganj Town Police Station, Gopalganj.
... ... Respondents.
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Appearance :
For the Petitioners : Mr. Rajesh Ranjan, Advocate.
For the State : Mr. Mithilesh Kumar Upadhyay, AC to GP-3.
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 24-02-2025
In the instant writ petition, the petitioners have prayed
for the following relief(s):
"For issuance of an appropriate writ/writs,
order/orders, direction/directions for
quashing the order dated 02.02.2021
passed in Excise Appeal Case
No.41/2018 by Excise Commissioner
whereby and whereunder confiscation
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
2/9
order dated 18.10.2016/15.11.2016
passed by District Magistrate, Gopalganj
in Confiscation case no.47/2017 arising
out of Gopalganj P.S. Case No.347/2016
has been affirmed."
2. On 10.02.2025, we had passed the following orders:
"Prima facie, petitioners are fence sitters
insofar the relief(s) sought in the
present lis for the reasons that identical
matter was subjudiced before this Court
in C.W.J.C. No.16279 of 2022 (Sanjay
Kumar @ Sanjay Pasi @ Sanjay
Choudhary Versus The State of Bihar
and others) and it was decided on
26.04.2023
in favour of Sanjay Kumar
@ Sanjay Pasi @ Sanjay Choudhary.
The petitioners had a cause of action in
the year 2021, the date on which
Appellate Authority decided Excise
Appeal Case No.41 of 2018 on
02.02.2021.
2. Be that as it may, learned counsel for
the petitioners submitted that both the
petitioners were involved in a criminal
case and they were in custody,
resultantly, they could not approach this
Court timely. In this regard, no material
has been placed on record. Further,
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
subject land is stated to be a joint family
property. According to the revenue
records, who is the owner of the property
is not forthcoming. All these details
must be furnished so as to examine
whether the delay and laches could be
hurdle for the petitioners or not?
3. Re-list this matter on 24.02.2025."
3. Today, learned counsel for the petitioners on
instructions submitted that both the petitioners were involved in
criminal case and they were convicted and they were under
custody during the period from 26.02.2021 till 13.07.2022 and
subsequently acquitted in Appeal.
4. Be that as it may, on 26.04.2023, the date on which
case of Sanjay Kumar @ Sanjay Pasi @ Sanjay Choudhary in
C.W.J.C. No.16279 of 2022 was decided. Thereafter, the
present writ petition has been filed belatedly in the year 2024.
5. Having regard to the fact that alleged offence is
relating to possession of 60 liters of illicit liquor (country made
Chulai liquor) and various articles for preparation of illicit
liquor and the officials seized those material and the offence was
committed on 18.08.2016. Further the aforementioned offences
were noticed by officials on the version of one person disclosed
consuming spurious liquor and thereafter there were 19 persons
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
died on account of consumption of spurious liquor sold by
petitioners and others. Consequently, confiscation proceeding
has been undertaken while confiscating the subject matter of
premises on 18.10.2016/15.11.2016.
6. Feeling aggrieved by the confiscation of the subject
matter of premises, petitioners have preferred appeal before the
Appellate Authority and suffered an order on 02.02.2021.
Therefore, the cause of action was accrued to the petitioners in
the month of May, 2021, if reasonable period of time is taken
into consideration. Petition should have been filed after
releasing from judicial custody within a period of three months.
However, for the purpose of filing writ petition, there is no time
limit. Be that as it may, the Hon'ble Supreme Court in the case
of State of Jammu and Kashmir Versus R.K. Zalpuri,
reported in AIR 2016 Supreme Court 3006, in paragraph-20,
has held as under:
"20.Having stated thus, it is useful to refer to
a passage from City and Industrial
Development Corporation v. Dosu
Aardeshir Bhiwandiwala and Others,
wherein this Court while dwelling upon
jurisdiction under Article 226 of the
Constitution, has expressed thus:-
"The Court while exercising its jurisdiction
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
under Article 226 is duty-bound to
consider whether:
(a) adjudication of writ petition involves
any complex and disputed questions of
facts and whether they can be satisfactorily
resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or
effective remedy for the resolution of the
dispute;
(d) person invoking the jurisdiction is guilty
of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or
barred by any valid law; and host of other
factors."
7. Learned counsel for the petitioners submitted that in
the criminal proceedings, petitioners have been acquitted.
Therefore, action of the respondents insofar as confiscation and
its affirmation by the Appellate Authority are liable to be set
aside.
8. Offences committed under Section 47(A) and 57 of
the Bihar Prohibition and Excise (Amendment) Act, 2016 read
with offences under Section 272 and 273 of IPC, the State is
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
empowered to initiate parallel proceedings like confiscation
proceedings and criminal proceedings for the offences under the
Bihar Prohibition and Excise (Amendment) Act, 2016 read with
the then Indian Penal Code. Therefore, if the petitioners are
acquitted in the criminal case, it has no bearing insofar as
confiscation proceedings are concerned since parallel
proceedings are provided under the aforementioned Act and
Rules. At this stage it is relevant to extract para-8 of the counter
affidavit and it reads as under:
"8. That averment made in para 5 of the
writ petition, it is submitted that on the basis of
written report of SHO cum-Police Inspector,
Gopalganj Town P.s. namely V.P. Alok Gopalganj
Ps Case NO-347/2016 dated 18.08.2016 u/s-272,
273 of IPC and 47(a) and 57 of the Bihar Excise
(Amendment) Act, 2016 was registered. The
informant of the case has alleged inter-alia in his
written report that some persons were admitted in
Sadar Hospital Gopalganj shown the sign of
consumption of spurious liquor and one of them
namely Bandhu Pasi stated that he had consumed
liquor, purchased from accused persons of the case.
On the basis of that information, the police party
rushed into Village-Khajurbani and conducted the
raid and recovered the country made chulai liquor
from the house of the petitioner and other accused
persons and accordingly FIR was lodged. It is
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
requisite to mention here that there was total 19
persons were died due to consumption of such
spurious liquor for which Gopalganj PS Case n-
348/2016 was registered under section 328, 304 &
120B/34 of IPC and section 50(a) (b) (c) of Same
Act, 2016."
Reading of the factual aspects of the matter it is serious
offence committed by petitioners. No doubt, petitioners were
acquitted in criminal case. However, confiscation proceedings
is independent to that of criminal proceedings. It is necessary to
point out that standard of proof required in the two proceedings
like criminal and civil are entirely different, however, it is well
settled that in a given case both the proceedings can proceed
simultaneously. If one proceeding is binding on another
proceeding, in that event there is no point in providing twin
proceedings in the Statute. The Hon'ble Supreme Court time
and again held that parallel proceedings are permissible like in
disciplinary and criminal proceeding in the service matters.
9. No doubt, confiscation of subject matter is of
premises/land would be too harsh for the reasons that
petitioners' livelihood is involved and it violates Article 21 of
the Constitution, therefore, we proceed to invoke extraordinary
jurisdiction under Article 226 of the Constitution and modify
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
the confiscation order and Appellate Authority's order to the
following effect:
"Reading of the Bihar Prohibition and Excise
Act, 2016 read with the Bihar Prohibition and
Excise Rules, 2021, there is a provision for
imposition of penalty from Rs.1,00,000/- to
Rs.5,00,000/-(Rupees One Lac to Rupees Five
Lacs). Having regard to the seizure of 60 liters
of illicit liquor along with the articles for the
purpose of manufacturing illicit liquor and 19
persons have died on consumption of illicit
liquor, we propose to impose the penalty of
Rs.2,50,000/-(Rupees Two Lacs and Fifty
Thousand). The same shall be remitted in the
concerned Treasury or before the concerned
authority within a period of eight weeks from
today. If such penalty amount is deposited
before the concerned authority, the concerned
authority or respondent is requested to release
the subject matter of premises in favour of the
petitioners."
10. The above exercise has been undertaken by us only
to avoid multiple litigation to the extent that setting aside the
orders of Confiscation and Appellate Authority and remanding
the matter to the confiscating authority to modify the penalty of
confiscation of premises to that of imposition of penalty in
Patna High Court CWJC No.15357 of 2024 dt.24-02-2025
terms of money, as provided under the Bihar Prohibition and
Excise Act, 2016 read with the Bihar Prohibition and Excise
Rules, 2021.
11. Instant writ petition is allowed in part.
(P. B. Bajanthri, J)
( Sunil Dutta Mishra, J)
P.S./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.03.2025.
Transmission Date NA
