Arvind Kumar v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.8580 of 2022 ====================================================== Arvind Kumar Son of Rampravesh Ray, Resident of Village - Salempur, P.S. - Lalganj, District - Vaishali.

... ... Petitioner/s

Versus

1.

The State of Bihar through Chief Secretary, Govt. of Bihar, Patna. 2.

Additional Chief Secretary, Excise Department, Bihar, Patna. 3.

The Commissioner, Excise Department, Government of Bihar, Patna. 4.

The Collector Cum - District Magistrate, Vaishali. 5.

The Senior Deputy Collector, Vaishali.

6.

District Transport Officer, Hajipur Vaishali. 7.

Sub-Divisional Officer, Hajipur, Vaishali.

8.

The Superintendent of Police, Vaishali.

9.

The Excise Superintendent, Vaishali.

10.

S.H.O., of Vaishali Police Station, Vaishali. ... ... Respondent/s ====================================================== (The proceedings of the Court are being conducted by Hon'ble the Chief Justice /Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences /offices.) Appearance :

For the Petitioner/s :

Mr.Rajeev Ranjan, Adv 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 ) Date : 22-07-2022 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- "(i) For directing and commanding the respondent to quash the order dated 25.04.2022 (Ann-7) passed by Additional Chief Secretary, Bihar, Patna, in Excise Revision No. 103/2022 "Arvind Kumar Vs. Excise Commissioner & Ors" whereunder and whereby he has affirmed the order

2/5 dated 22.07.2021 (Ann-5) pased by the respondent no. 05, the Senior Deputy Collector, Vaishali in Confiscation Case No. 14/2021-2022 as well as the order dated 1.2.2022 (Ann6) passed in Excise Appeal no. 52/2022 by the Court of Excise Commissioner, Patna, for confiscation of S-cross maruti Car bearing registration number BR01EZ5818. (ii) Also for directing and commanding the respondents to release provisionally the S-cross Maruti Car bearing registration number BR01EZ5818, in favour of the petitioner as he is the real owner of its S-cross Maruti Car, seize din Vaishali P.S. Case No. 17 of 2021 dated 12.01.2021, lodged under Section 30(a), 41(i), 33, 34, 36 of Bihar Prohibition and Excise Act, 2016.

(iii) For directing and commanding the respondents to take immediate an appropriate action with respect to release the said S-cross Maruti Car as valuation of the said seized vehicle is decreasing day by day."

Petitioner claims to be the owner of the seized vehicle. Allegation is recovery of 70 litre of spirit from the seized vehicle of the petitioner.

It is submitted by learned 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) as well as 57B have 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

3/5 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, 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.] 57B-Things or premises liable to be released upon penalty- (1) Any animal, vehicle, vessel or other

4/5 conveyance used for committing any offence punishable under this Act that has been seized by any police Officer or Excise Officer may be released by the Collector upon payment of such penalty as may be notified by the State Government.

(2) Any premises or part thereof used for committing any offence punishable under this Act that has been seized by any police Officer or Excise Officer may be released by the Collector upon payment of such penalty as may be notified by the State Government.

(3) If the person concerned does not pay the penalty, then the Collector shall proceed to confiscate the said animal, vehicle, vessel or other conveyance and premises as per section-58.

[Explanation 1: It shall not be a right of the accused to get his conveyance, item or premises released upon payment of the required penalty. The Collector, based upon a report by a police Officer or an Excise Officer, may, for reasons to be recorded in writing, still refuse to release the said conveyance, item or premises and proceed ahead with confiscation and auction/destruction.] [Explanation 2: The Collector shall, from the date of this Amendment coming into force, close the on-going confiscation proceeding if the person concerned pays the penalty as notified and release such vehicle, conveyance or premises.] [Explanation 3: Such release shall not affect the outcome of trial, if any, before the Special Court.]" In said view of the matter, the writ petition is disposed of with liberty to petitioner to avail the remedy of the amended provision 12(A) and 57B of the Bihar Prohibition & Excise (Amendment) Rules, 2022.

It is made clear that this Court has not expressed any opinion with respect to merit of case. The vehicle shall not be auction sold, without taking leave of this Court. Equally, liberty reserved to petitioner to approach this

5/5 Court for same and subsequent cause of action, if so arises. (Sanjay Karol, CJ) (S. Kumar, J) ranjan/- AFR/NAFR NAFR CAV DATE NA Uploading Date Transmission Date NA