Sanjay Kumar @ Sanjay Rai v. The State Of Bihar Through The Principal Of Secretary, Excise Department, Bihar At Patna And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.2563 of 2018 Arising Out of PS. Case No.-842 Year-2018 Thana- SITAMARHI District- Sitamarhi ====================================================== Sanjay Kumar @ Sanjay Rai S/o Upendra Rai Resident of VillageBariyarpur,P.S. Sitamarhi, Distt.-Sitamarhi ... ... Petitioner/s

Versus

1. The State of Bihar through the Principal of Secretary, Excise Department, Bihar at Patna

2. The District Magistrate,Sitamarhi,Distt.-Sitamarhi

3. The Superintendent of Police, Sitamarhi, Distt.-Sitamarhi

4. The Sub Division of Police Sitamarhi, Sadar,Distt.-Sitamarhi

5. The Officer-in-Charge of Sitamarhi Police Station,Distt.-Sitamarhi ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Sanjay Kumar For the Respondent/s :

Mr. Kumar Manish (SC 5) ====================================================== 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 vehicle (Passion Pro Motorcycle) bearing Registration No. BR-30M-2064 seized in connection with Sitamarhi P.S. case NO.842 of 2018 dated 29.08.2018 registered under Sections 30(a), 37(b)(c) of the Bihar Prohibition & Excise Act, 2016.

Accusation is that 3 liters Nepali liquor is recovered from the motorcycle in question.

Learned counsel for the petitioner submits that the

2/4 confiscation proceeding for the vehicle in question is pending vide Confiscation Case No. 2 of 2019 before the Collector, Sitamarhi. Learned counsel for the petitioner further submits that the vehicle is lying under open sky under the Police Station and if release is not allowed the vehicle is likely to become a junk and in such circumstance, the State is not going to gain anyway in confiscation proceeding. Learned counsel 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 decision 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.16839 of 2018 dated 03.12.2018.

In the given facts and circumstances where vehicle in question is lying under open sky, losing it's road worthiness, keeping in mind the interest of the State as well, I direct that pending finalization of the confiscation proceeding, the vehicle in question be released provisionally in favour of the petitioner

3/4 on producing the document of ownership and registration in his name before the District Magistrate, Sitamarhi (Confiscating Authority) 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/appeal 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 confiscating authority 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 furnish an undertaking not to challenge the said Panchanama in course of trial.

4/4 Subject to the above conditions, following the views expressed by the Hon'ble Apex Court and Hon'ble 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 the final order passed in confiscation proceeding.

(Sudhir Singh, J) Narendra/- U T