Dilwar Akhtar v. The State Of Bihar Through Principal Secretary, Home Department, Government Of Bihar, Patna And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.2737 of 2018 Arising Out of PS. Case No.-305 Year-2017 Thana- SIWAN MUFFASIL District- Siwan ====================================================== Dilwar Akhtar, Son of Abdul Kyum, Resident of Village- Asoiya, P.O.+P.S.- Marhowrah, District- Saran (Chapra).

... ... Petitioner/s

Versus

1. The State of Bihar Through Principal Secretary, Home Department, Government of Bihar, Patna.

2. The District Magistrate, Siwan.

3. The Superintendet of Police, Siwan.

4. The Deputy Superintendent of Police, Siwan.

5. The Superintendent of Excise, Siwan.

6. The State House Officer, Mufassil, Siwan.

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

For the Petitioner/s :

Mr. Manoj Kumar For the Respondent/s :

Mr. Vikash Kumar (Sc 11) ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH ORAL ORDER 17-12-2018 Heard learned counsel for the petitioner and learned counsel for the State.

This application has been filed seeking provisional release of the Motorcycle, bearing registration No. BR-04S7208, Chassis No. MD625CF19F1N80601, Engine No. CF1NF1412788, seized in connection with Mufassil (Siwan) P. S. Case No. 305 of 2017 dated 02-07-2017 registered under Sections-272, 273, 308, 420 of the IPC and Sections-41(1) and 37(B) of the Bihar Prohibition and Excise Act, 2016. Accusation is that 2 litres wine is recovered from motorcycle.

2/4 Learned counsel for the petitioner submits that no confiscation proceeding has been initiated for the vehicle in question. Learned counsel for the petitioner further submits that the vehicle is lying under open sky under the Police Station and if it is allowed to remain there for any longer time, the whole motorcycle will become a junk and if release is not allowed, the State is not going to gain anyway in confiscation proceeding. Learned counsel for the petitioner also submits that the petitioner is willing to provide such surety and undertakings which may be required to protect the interest of the State during the pendency of the confiscation. Learned counsel for the petitioner has relied upon the decisions of the Supreme Court in the case of Sunderbhai Ambalal Desai vs.

State of Gujrat reported in (2002) 10 SCC 283 and General Insurance Council and others vs. State of Andhra Pradesh and others reported in (2010)6 SCC 768 and the decision of the Hon'ble High Court, Patna passed in C.W.J.C. No. 5840 of 2018 (D.B.) dated 10-122018.

3/4 name before the concerned court below with two sureties 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 vehicle in question has never been involved in any offence of similar nature in past. (ii) 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 and shall not alienate the vehicle during this period.

(iii) The petitioner shall furnish an undertaking to produce the vehicle before the confiscating authority as and when required.

(iv) Prior to release of the vehicle a Panchnama would be prepared by the court below wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and the same shall be kept on record so that in future if so required it may be used as a secondary evidence. The petitioner shall undertake not to challenge the said Panchanama in course of trial.

Subject to the above conditions, following the views expressed by the Hon'ble Apex Court as well as Hon'ble

4/4 Division Bench of this Court and in tune with that, I dispose of this application.

The release shall be allowed within a period of 7 days from the date of submission of the sureties and the undertakings as stated above. This would, however, be subject to initiation and finalization of the confiscation proceeding, if any. (Sudhir Singh, J) A.K.V.//- U T