← Library
Patna High CourtCWJC/17556/2022disposed

Sujit Kumar @ Mulayam Kumar v. The State Of Bihar

2023-02-02The Chief Justice -,Mr. Justice Partha Sarthy4 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.17556 of 2022 ====================================================== Sujit Kumar @ Mulayam Kumar S/o Ramesh Ray R/o Village Jagdishpur, P.S. Ragho Pur, District Vaishali.

... ... Petitioner/s

Versus

1.

The State of Bihar through the Principal Secretary, Registration Excise and Prohibition Department Bihar, Patna.

2.

The Principal Secretary, Registration Excise and Prohibition Department Bihar, Patna.

3.

The Excise Commissioner, Bihar Prohibition and Excise Act 2016. 4.

Collector Cum District Magistrate, Nawada.

5.

Superintendent of Police, Nawada.

6.

Excise Superintendent, Nawada.

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

For the Petitioner/s :

Mr.Rewti Kant Raman, Advocatge For the Respondent/s :

Mr.Vivek Prasad GP-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 02-02-2023 Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s): 1.That this writ application is being filed for quashing the order dated 02.12.2021 passed by the respondent no.2 in Excise Revision no. 212 of 2021 contained in Annexure-7 by which he has affirmed the order dated 05.01.2021 passed by the Excise Commissioner, the Respondent no.3 in Excise Appeal no. 148 of 202 by which he has affirmed the order dated 02.06.2020 passed by District Magistrate Cum Collector, Nawada, respondent no.4 in Confiscation case no. 425(M)/2019 contained in Annexure- 4 by which he has confiscated

2/4 the Truck of the petitioner bearing Registration no. BR25G-3235.

Petitioner claims to be the owner of the confiscated vehicle.

Recovery of 1080 litres of illicit liquor was made 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 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.

3/4 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 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.

4/4

(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.