Mithlesh Kumar Giri v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.1281 of 2022 ====================================================== Mithlesh Kumar Giri, S/o Lal Babu Giri, R/v and P.O.- Radhiya, P.S.- Govindganj, District- East Champaran.

... ... Petitioner/s

Versus

1.

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

2.

The District Magistrate-cum-Collector, East Champaran. 3.

The Superintendent of Police, East Champaran. 4.

The S.H.O. of Police Station (Raghunathpur O.P.) Turkauliya, East Champaran.

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

For the Petitioner/s :

Mr.Kundan Rathore@ Kundan Kumar, Advocate For the Respondent/s :

Mr.Kumar Manish (Sc5) CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.) Date : 22-04-2022 Heard learned counsel for the parties.

Petitioner has prayed for following reliefs:- "I. For issuance of appropriate Writ/ order/direction or writ in nature of mandamus commanding the respondent no. 02 to release the Motor Cycle bearing registration no. BR-050-0740.

II. For the issuance of appropriate writ/order direction or writ in the nature of mandamus commanding the respondents to release the Motor cycle of the petitioner since the same is rotting in police station premises and is subject of decay, moreover the same Motor cycle is only one transportation article of petitioner.

2/5 iii. For grant of any other relief or reliefs to which the petitioner be found entitled in the law be granted to them."

It is submitted that 9 litres of illicit liquor was recovered from the motorcycle of petitioner which was stolen on 02.07.2020 for which he had instituted an FIR (Annexure-1) and his stolen vehicle was misused by miscreants for transporting illicit liquor which was seized by police on 09.10.2021 and he is not responsible of being indulged in carrying illicit liquor in his vehicle as same was stolen for which he had already instituted an FIR, for which petitioner cannot be held to be responsible.

In facts and circumstances of present case, District Magistrate/Confiscating Authority concerned is directed to provisionally release the vehicle of petitioner after due identification of ownership of the vehicle on production of ownership and registration papers with respect to vehicle in question upon furnishing adequate sureties to the satisfaction of the concerned District Magistrate/Confiscating Officer. The release shall be allowed within a period of 14 days from the date of submission of the sureties. Or, It is submitted on behalf of counsel for the State that

3/5 during pendency of writ petition, there has been amendment in the Bihar Prohibition and Excise Rules, 2021 and a new Rule 12(A) has been inserted which reads as under:- "12. A. Release of Vehicles, Conveyance etc. on payment of Penalty:- (1) If any vehicles, conveyance, vessel, animal etc. has been seized by any police or excise officer under the Act, then in terms of section -57B(1) of the Act, the Collector or an officer authorized by him upon receipt of an application in Form IV by the owner of the said conveyance or vehicle etc., may release the said conveyance or vehicle upon payment of such penalty as may be ordered by the Collector or the officer authorized by him.

Provided, where it is not possible to ascertain the owner of the vehicle or the owner is not coming to claim the vehicle, the Collector or the officer authorized by him, after waiting for 15 days from the date of seizure, shall proceed to confiscate and auction the vehicle as per the provisions of the Act.

(2) The penalty shall be 50% of the latest insured value of vehicle/conveyance. 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 and 50% of that value shall be the amount of penalty.

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.

(3)Notwithstanding above, if on a report by police officer or excise officer, the Collector or the officer

4/5 authorized by him is satisfied that releasing the vehicle or conveyance shall not be in the public interest, he shall proceed ahead with the confiscation of the said vehicle or conveyance and its subsequent auction / disposal.

(4) Where the conveyance is such that its valuation / insurance is not possible, the Collector or the officer authorized by him shall impose such fine as he deems fit. While imposing such fine, the Collector or the officer authorized by him shall have due regard to the economic status of the individual, nature of his involvement in the crime and the quantum of intoxicant recovered.

(5) Such penalty shall be, regardless of the outcome of the trial if any, before the Special Court, nonrefundable.

(6) The owner of the vehicle / conveyance shall, after the release of the vehicle / conveyance, produce the vehicle/ conveyance as and when required by the authorities.

[Explanation:- In all pending / ongoing cases of confiscation/auction of vehicles, the Collector or the officer authorized by him may give an opportunity to the existing owner to pay the aforesaid penalty and get the vehicle released. Upon satisfaction about ownership and upon payment of such penalty, the ongoing confiscation/auction proceeding may be dropped and the vehicle released.]"

In view of amendment in the Excise Act, and same being applicable in pending cases, it shall be open for the petitioner to get his/her vehicle released after making payment of penalty in terms of Rule 12(A) inserted by amending Bihar Prohibition and Excise Rules, 2021.

5/5 With said observation and direction, this writ petition is disposed of.

Equally, liberty reserved to petitioner to approach this Court for same and subsequent cause of action, if need so arises.

(Sanjay Karol, CJ) ( S. Kumar, J) Sanjay/- AFR/NAFR NAFR CAV DATE NA Uploading Date 28.04.2022 Transmission Date NA