Vicky Kumar v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2420 of 2022 ====================================================== 1.
Vicky Kumar Son of Asim Kumar Gupta, R/o Rajendra Path, Bhatacharya More, Jagat Janani Mata Mandir, P.S. - Gandhi Maidan, District - Patna, Pin - 800001.
2.
Ravi Kumar, Son of Late Vimlesh Yadav, R/o Near More of Janak Kishor Road, P.S. - Kadamkuan, District - Patna, Pin - 800003. ... ... Petitioner/s
Versus
1.
The State of Bihar through the Principal Secretary, Excise Department, New Secretariat, Patna.
2.
The Excise Commissioner, Bihar, Patna.
3.
The District Magistrate, Patna.
4.
The S.H.O. Gandhi Maidan, Patna.
... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Anang Mohan Sinha, Advocate For the Respondent/s :
Mr.Kumar Manish (S.C. 5) ====================================================== 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.
Petitioners have prayed for the following relief(s):- "A. For, commanding & directing the authorities concern i.e., District Magistrate Patna to release vehicle, as well as two mobiles in question Hero Passion Pro, bearing registration no. BR01CE0709, Chasis No. MBLHA10BJEHJ7-1010, Engine No. HA10ETEHJ65664 and Samsung Galaxy Mobil A7, bearing IMEI No. 352982102081364/01 and Samsung Galaxy Mobile J6 359993091774748/01 respectively to the owner of the articles i.e., petitioners. Which has been alleged to involved in aforesaid Gandhi Maidan P.S. Case No. 200/21.
2/6 B. Pass such other order/orders/direction/direction as your lordship may deem fit and proper in the fact and circumstances of the case."
Allegation is recovery of 370 ml. of illicit liquor from the seized motorcycle of the petitioner no. 1. Petitioner no. 1 claims to be the owner of the said vehicle.
It is further submitted that a meagre quantity of 370 ml. of liquor has been recovered from the vehicle, as such, it cannot be construed that the vehicle was used for transporting/carrying illicit liquor.
In the facts and circumstances of the case, the District Magistrate/Confiscating Officer concerned is directed to provisionally release the vehicle of petitioner no.1 after due identification of ownership of the vehicle seized by the police in excise case on production of ownership and registration papers with respect to vehicle in question in his name with two sureties (one local) to the extent of the value of the vehicle as indicated in the insurance document.
The petitioner while submitting the sureties shall also furnish the following affidavits/undertakings: (i) That the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding
3/6 and shall not alienate the vehicle during this period. (ii) The petitioner shall furnish an undertaking to produce the vehicle before the confiscating authority as and when required.
(iii)Prior to release of the vehicle, a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required, it may be used as a secondary evidence. The petitioner shall furnish an undertaking not to challenge the said Panchanama.
The release shall be allowed within a period of 14 days from the date of submission of the sureties and the undertakings as stated above, which would however be subject to finalization of the confiscation proceeding.
OR It is submitted on behalf of counsel for the State that 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.
4/6 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 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,
5/6 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 in terms of Rule 12(A) inserted by amending Bihar Prohibition and Excise Rules, 2021. So far as release of two Samsung Galaxy mobiles (Samsung Galaxy Mobil A7, bearing IMEI No. 352982102081364/01 and Samsung Galaxy Mobile J6 359993091774748/01) recovered from the petitioner no.2, is concerned, the same are not liable for confiscation under section 56 of the Excise Act, as such, bar of jurisdiction in confiscation under section 60 of the Excise is not applicable and the Special Court, Excise has jurisdiction to pass order for release of mobiles during pendency of trial.
6/6 As such, petitioner would be at liberty to file a petition before the Special Court, Excise under Section 451 of Cr.P.C. and, if any, such petition is filed for release of mobiles, the Special Court, Excise shall dispose of such petition within 30 days from the date of its filing.
Petition stands disposed of with the aforesaid observations/directions.
(Sanjay Karol, CJ) ( S. Kumar, J) Rajiv/veenaAFR/NAFR CAV DATE Uploading Date Transmission Date