Manoj Sahani v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.10354 of 2022 ====================================================== Manoj Sahani Son of Suresh Sahani, Resident of Village- Pitaujhiya, P.S.- Hathauri, District- Muzaffarpur.

... ... Petitioner/s

Versus

1.

The State of Bihar through the District Magistrate, Sitamarhi. 2.

The Excise Commissioner, Bihar, Patna.

3.

The Additional Chief Secretary, Bihar, Patna. 4.

The Superintendent of Police, Sitamarhi.

5.

The Sub Inspector Excise, Sitamarhi.

6.

The A.S.I. cum SHO of Bajpatti Police Station, District- Sitamarhi. ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Birendra Kumar, Advocate For the Respondent/s :

Mr.Vikash Kumar ( SC 11 ) ====================================================== 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 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.) Date : 29-07-2022 Heard learned counsel for the petitioner and learned counsel for the State.

Petitioner has prayed for the following reliefs: - "i. For issuance of appropriate / writ / writs/ direction direction/ order/ orders in the nature of certiorari for quashing the order dated 08.04.2022 passed in Excise Revision No- 44 of 2022 whereby and where under the learned Additional Chief Secretary, Bihar, Patna dismissed the Revision for release of Vehicle ( Celerio , ZXI Maruti Suzuki Car) without applying

2/5 his judicial mind which is against the law as well as on fact and is fit to be set aside.

ii) For Quashing the order dated 01.11.2021 passed in Excise Appeal Case No-723 of 2021 by which the learned commissioner refuse to release the Celerio ZXI Maruti Suzuki Car In favour of petitioner without assigning any reason nonest and non exiting ground which is against the law as well as on fact and is fit to be set aside.

(iii) For Quashing the order dated 18.11.2021 passed in Confiscation Case No. 86 of 2020 by which the learned Collector refused to release the Celeriox ZXI Maruti Suzuki car in favour of petitioner without assigning any reason nonest and non existing ground which is against the law as well as natural justice and is fit to be set aside.

(v) For issuance of appropriate direction for release of Celerio ZXI Maruti Suzukl car bearing Reg. No. BR 06 C-6268, Engine No. K10BN8376695, Chesis No.MA3ETDE1S00705268 which was seized by the police in connection with Bajpatti P.S. Case No. 270 of 2020 dated 04.07.2020 registered for an offence under section 30 (a) of Bihar Prohibition & Excise act, 2016 pending in the Court of Learned Additional District Judge-l cum Special Judge (Excise Act).

(v) For issuance of appropriate direction for release of vehicle in question in favour of the petitioner on adequate surety on the terms and conditions as laid down by this Hon'ble Court.

(vi) For issuance of appropriate direction, the auction of the vehicle in question has not been proceeded during the pendency of the present case.

(viii) For any other relief/reliefs to which the petitioner may be found entitled in the facts and circumstances of the case."

Petitioner claims to be the owner of the confiscated vehicle.

Recovery of 610 litres of illicit liquor was made from the seized vehicle of the petitioner.

3/5 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 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

4/5 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 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

5/5 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. Equally, liberty reserved to petitioner to approach this Court for same and subsequent cause of action, if so arises. (Sanjay Karol, CJ) ( S. Kumar, J) chn/- AFR/NAFR CAV DATE Uploading Date 08.08.2022 Transmission Date