Subhan Mian v. The State Of Bihar Through The Director General Of Police, Govt. Of Bihar, Patna And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.2159 of 2017 Arising Out of PS.Case No. -null Year- null Thana -null District- SIWAN ===========================================================

1. Subhan Mian, Son of Late Ebrahim Mian, Resident of Village- Bhager, P.S.- Siswan, District- Siwan.

.... .... Petitioner/s

Versus

1. The State of Bihar through the Director General of Police, Govt. of Bihar, Patna.

2. The Secretary, Excise Department, Govt. of Bihar, Patna.

3. The Commissioner, Excise Department, Govt. of Bihar, Patna.

4. The District Magistrate, cum Collector, District- Siwan.

5. The Superintendent of Police, Siwan, District- Siwan.

6. The S.H.O. Hussainganj, Police Station (M.H. Nagar, District- Siwan).

7. The Block Development Officer cum Executive Magistrate, Hassanpura, District- Siwan.

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

For the Petitioner/s : Mr. Jitendra Kumar Giri, Advocate For the Respondent/s : Mr. Kumar Manish, SC-5 =========================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR ORAL JUDGMENT Date: 20-12-2017 Heard learned counsel for the parties.

2. The residential premise of the petitioner situated over the land having Khata No.106, appertaining to Kheshra No.602, Mauza Hussainganj, Tauzi No.1184, Thana No.369 was sealed in connection with Hussainganj M.H. Nagar P.S. Case No.44 of 2017 registered for the alleged violation of the Bihar Excise Law.

3. Submission of the learned counsel for the petitioner is that the power of the executive authority to confiscate the vehicle/house and its confiscation and auction would amount to pretrial punishment, which is not permissible in law and the same issue

Patna High Court Cr. WJC No.2159 of 2017 dt.20-12-2017 P2/ is pending consideration before a larger Bench of this Court in LPA No.1647 of 2015 (Baleshwar Roy V. The State of Bihar & Ors.) and considering the aforesaid pendency another Division Bench of this Court in Cr.W.J.C. No.605 of 2016 in similar circumstances has ordered unsealing of the premises.

4. After hearing the parties and considering the fact that similar issue is pending before the larger Bench of this Court, let the referred residential premise of the petitioner be unsealed and possession thereof be handed over to the petitioner, on the petitioner's filing an undertaking that he would not dispose of the same or put under encumbrance without permission of the learned Court-below/authority concerned where the case is pending.

5. Let operation of the confiscation proceeding, if any, remain in abeyance till disposal of the L.P.A. aforesaid and shall be subject to the result of the L.P.A. aforesaid.

6. With the aforesaid observation, this application stands disposed of.

(Birendra Kumar, J) Mkr./- AFR/NAFR NAFR CAV DATE NA Uploading Date22.12.2017 Transmission Date 22.12.2017