Chintu Kumar @ Chintoo Kumar v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.10627 of 2019 ====================================================== Chintu Kumar @ Chintoo Kumar S/o Ramdeo Paswan Resident of VillageKhaneta,P.S. Belaganj,Dist.-Gaya ... ... Petitioner/s

Versus

1.

The State of Bihar through Principal Secretary,Department of Prohibition and Excise,Govt. of Bihar,Patna 2.

The District Magistrate-cum-Collector, Gaya 3.

The Superintendent of Police, Gaya 4.

The Superintendent of Excise, Gaya 5.

The Officer-in-Charge, Belaganj,Police Station,Dist.-Gaya ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Satya Veer For the Respondent/s :

Mr.Vivek Prasad (Gp7) ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date : 13-08-2019 Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State.

The petitioner prays for provisional release of the Mahindra Bolero Pick Up bearing registration No. BR02GA9234 which has been seized in connection with Belaganj P.S. Case No. 268 of 2018 for the offence punishable under section 30(d) of the Bihar Prohibition and Excise Act, 2016 and sections 2(e), 3, 5(b), 18 and 42 of Mahua Flower Rules.

Counsel for the petitioner informs that it is for alleged

Patna High Court CWJC No.10627 of 2019 dt.13-08-2019 2/3 recovery of 1050 Kg of Mahua flower that has given rise to Belaganj P.S. Case No. 268 of 2018 for alleged violation of the provisions of section 30(d) of the Bihar Prohibition and Excise Act (for short 'the Act') and sections 2(e), 3, 5(b), 18 and 42 of Mahua Flower Rules.

The issue as to whether a seizure of Mahua flower can be a subject matter of confiscation proceeding under the Act came up for consideration in a batch of cases arising out of C.W.J.C. No. 23163 of 2018 (Umesh Kumar vs. the State of Bihar & Ors.) and analogous cases and this Court after discussing the legal position, has held as follows :

"For the discussions above, we find the proceedings initiated against the petitioners for alleged recovery of Mahua flowers exceeding 5 Kg. which lies at the foundation for such penal action under 'the Act' and the 'Mahua Flowers Rules', absolutely without jurisdiction because we neither find such enabling powers in the respondents to initiate any action under 'the Bihar Mahua Flowers Rules' nor 'the Act' enables the respondents to initiate action on mere possession of Mahua Flowers, until, it is converted either into plain or spiced spirit as clearly defined under Section 2(16) of 'the Act'.

Since 'the Mahua Flowers Rules' allows any person to remain in possession of Mahua Flowers to the extent of 5 kg. without any licence and any quantity in excess thereof, is to be done under a licence, the quantity possessed by the respective petitioners in excess of 5 kg., without a licence, may be a statutory violation and thus capable of retention by the State Government but in absence of any penal action so provided under

Patna High Court CWJC No.10627 of 2019 dt.13-08-2019 3/3 'the Rules' or 'the Act for possession of these flowers exceeding the limit, even if the State Government would be within its jurisdiction to retain the same, the confiscation proceedings cannot be allowed to continue.

In result, we hold that the confiscation proceedings, if any, initiated against the petitioners for alleged violation of Section 3 of 'the Mahua Flowers Rules' read alongside the provisions of 'the Act' for possession of Mahua Flowers exceeding 5 kgs., is without sanction of law and consequentially the confiscation proceeding, if any, initiated against the petitioners shall stand quashed and the vehicles seized, if not already released, shall be released in favour of the owner on production of ownership papers."

In view of the legal position so settled, we accordingly, quash the confiscation proceeding, if any, initiated against the petitioner arising from Belaganj P.S. Case No. 268 of 2018 for alleged possession of 1050 Kg of Mahua flower and consequently direct the District Magistrate, Gaya to forthwith release the vehicle of the petitioner on production of ownership papers.

Writ petition is allowed.

(Jyoti Saran, J) ( Partha Sarthy, J) Prakash/- AFR/NAFR NAFR CAV DATE Uploading Date Transmission Date