Md. Meraj @ Mohammad Meraj v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.167 of 2020 ====================================================== Md. Meraj @ Mohammad Meraj, Male, aged about 32 years, Son of Mohammad Bhikhari, resident of Mohalla- Kalibagh, Ward No. 12, Near Chhoti Masjid, Gadwan Toli, P.S.- Kalibagh, District- West Champaran ... ... Petitioner/s

Versus

1.

The State of Bihar through Principal Secretary, Department of Excise and Prohibition, Govt. of Bihar, Patna 2.

The District Magistrate, West Champaran at Bettiah, District- West Champaran.

3.

The Superintendent of Police, West Champaran at Bettiah, District- West Champaran 4.

The Office-in-Charge of Town Police Station, Bettiah, District- West Champaran ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Anis Akhtar For the Respondent/s :

Mr. Kumar Manish (SC-5) ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH and HONOURABLE MR. JUSTICE ANIL KUMAR SINHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH) Date : 05-02-2020 Heard Mr. Md. Anis Akhtar, learned counsel for the petitioner and Mr. Kumar Manish, learned SC -5. Learned counsel for the petitioner is permitted to make correction in paragraph no. 1 of the writ petition. The present writ application has been filed for release of Hero Splendor Plus (Black) colour motorcycle bearing registration no. BR22AE-6221, which has been seized in connection with Bettiah Town P.S. Case No. 648 of 2019, registered for the offence

2/8 punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2016 as amended by the Amendment Act 8 of 2018 (hereinafter referred to as 'the Act').

The relief as prayed for in paragraph - 1 of the writ petition, reads as follows:- "[I] For issuance of an appropriate writ in the nature of mandamus directing the respondents to release the Hero Splendor Plus (Black) Motorcycle of the petitioner bearing Registration No- BR22AE-6221, Engine NoHA10AGJHC56916, Chassis NoMBLHAR075JHC49059 which was seized in connection with Bettiah Town P.S. Case No.- 648 / 2019 dated 01-09-2016 registered under Section - 30(a) of the Bihar Prohibition and Excise Act, 2019.

[II] For issuance of any other relief / reliefs which may be deemed fit and proper by this Hon'ble Court.

The prosecution case as per the written report of Ramprit Paswan, Sub Inspector of Police, Bettiah Town P.S. submitted to the Station House Officer, Bettiah Town P.S. is to the effect that on 01.09.2019 during the course of patrolling, one Splendor Plus motorcycle, bearing registration no. BR22AE6221 was intercepted and from a bag carried by the motorcyclist, 09

3/8 liters of country made liquor was recovered, leading to registration of the Bettiah Town P.S. Case No. 648 of 2019 on 01.09.2019. Learned counsel for the petitioner submits that petitioner is the registered owner of the vehicle in question. The certificate of registration of the vehicle in question has been brought on record, as Annexure - 1 to the writ petition. He further submits that the vehicle in question is rotting under the open sky and keeping the vehicle in such condition and allowing it to reduce into a junk would ultimately result into waste of public money and petitioner is ready to produce the vehicle in question after release of the same as and when directed by the concerned court or the confiscation authority and petitioner shall not change the shape of the vehicle in question or transfer the same creating any kind of adverse interest against the interest of the State during the pendency of the confiscation proceeding.

The counter affidavit filed on behalf of respondent no. 2 on 04.02.2020 suggests that the matter was heard on 13.01.2020 and on the prayer of learned AC to SC -5, the matter was directed to be listed on 27th January 2020 thereafter, the confiscation proceeding has been initiated without verifying the fact that the petitioner is the owner of the vehicle in question and till date, no notice with regard to the confiscation proceeding has been issued

4/8 to the petitioner. Moreover, the recommendation has been made for initiating confiscation proceeding by the Superintendent of Police, West Champaran, Bettiah which is contrary to the provisions under Section 58 (1) of the Act which mandates that the recommendation / report shall be transmitted by the seizing or detaining authority to the District Collector, having jurisdiction over the said area.

Mr. Kumar Manish, learned SC - 5 relying upon the counter affidavit filed on behalf of respondent no. 2 i.e. District Magistrate, West Champaran, Bettiah submits that the recommendation for confiscation under Section 58(1) of the Act was made by Superintendent of Police, West Champaran, Bettiah vide letter no. 124 dated 18.01.2020 to the District Magistrate, West Champaran, Bettiah and consequently the confiscation proceeding being Confiscation Case No. C.R.M. 757 of 2019-20 has been initiated vide order dated 31.01.2020, and notices have only been issued to the F.I.R. named accused person, Sanjay Ram. Since the petitioner was not named in the F.I.R. hence, the District Transport Officer, West Champaran, Bettiah has been directed to submit report with regard to the owner of the vehicle in question. Considering the fact that sealing, detention or seizure is the sine qua non for valid initiation of a confiscation proceeding,

5/8 as incorporated under Sections 62, 56 and 58(1) of the Act. The confiscation has been initiated with regard to the motorcycle of the petitioner and the respondent has not disputed the claim of the petitioner, being the owner of the vehicle in question. It is surprising that the Superintendent of Police, West Champaran, Bettiah has made the recommendation for initiating confiscation proceeding, vide Annexure - A to the counter affidavit wherein he has only transmitted the proposal for confiscating the motorcycle without mentioning the owner of the vehicle in question. This suggests that the F.I.R. was registered on 01.09.

2019 and thereafter about four months, the report has been transmitted under Section 58(1) of the Act by the Superintendent of Police, Bettiah but he did not bother to verify as to who is owner of the vehicle in question which suggests the callous manner in which, the investigating agencies are investigating the cases under the Excise Act, being such a stringent Act. The Collector, West Champaran, Bettiah has initiated the confiscation proceeding vide order dated 31.01.2020 vide Annexure -B to the counter affidavit little realizing that he is going to confiscate the property where he has no knowledge of as to who is the owner of such property. Hence, it appears that entire exercise has been done in a hurry to frustrate the present writ application.

6/8 bothered to see that Section 58(1) of the Act mandates that recommendation / report has been transmitted by seizing or detaining authorities whereas in the present case, the Superintendent of Police, West Champaran, Bettiah has transmitted it.

In the circumstances prima facie it appears that the confiscation proceeding virtually has not commenced against the petitioner who is owner of the motorcycle in question as a result of which we are constrained to direct for the release of the vehicle to the satisfaction of the learned Collector, West Champaran on the following conditions:- (I) The petitioner will produce the proof of valid certificate of registration/ownership in his favour including the insurance papers;

(II) The petitioner will furnish surety bond of Rs. 50,000/- but not in the form of bank guarantee or cash, with two sureties of the like amount to the satisfaction of the A.D.J. II-cum-Special Judge, Excise, West Champaran, Bettiah or the Collector, West Champaran, Bettiah, as the case may be;

(III) The petitioner shall give an undertaking on affidavit that he will not deal with the vehicle in question or alienate

7/8 or encumber the same creating any kind of adverse interest against the interest of the State during the pendency of the confiscation proceeding;

(IV) The petitioner will not use the vehicle for any illegal purpose and as and when required, he will produce the vehicle in question before the court or authority concerned.

(V) At the time of release of the vehicle in question, the concerned court or authority shall get prepared photo copy of the vehicle in question duly certified in presence of the petitioner;

(VI) Panchnama of the vehicle in question shall also be prepared and will be kept on record which may be used as secondary evidence and the petitioner will furnish an affidavit incorporating therein an undertaking not to challenge the said photo copy or panchnama so prepared in his presence at the time of release of the vehicle in question for use in course of the trial or confiscation proceeding as the case may be.

It is expected from the learned District Magistrate, West Champaran at Bettiah to conduct the proceedings, particularly, considering the lapses on the part of authorities, which we have discussed in the present case and to conclude the proceedings within six weeks from the date

8/8 of receipt / production of a copy of this order. The exercise of release of the vehicle in question shall be done within a period of ten days of receipt / production of a copy of this order. The writ petition is disposed of.

(Dinesh Kumar Singh, J) ( Anil Kumar Sinha, J) praful/- AFR/NAFR NAFR CAV DATE NA Uploading Date 07-02-2020 Transmission Date NA