Patna High Court
Sunil Kumar vs The State Of Bihar on 17 January, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15682 of 2024
======================================================
Sunil Kumar, son of Kamleshwar Yadav, resident of Abadganj, Near Mission
School, PO-Daltonganj, Medininagar, PS- Daltonganj, District- Palamu
(Jharkhand).
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary Prohibition and Excise Department,
Govt. of Bihar, Patna.
2. The Director General of Police, Bihar, Patna.
3. The Excise Commissioner, Bihar, Patna.
4. The Assistant Excise Commissioner, Gaya.
5. The Collector-cum-District Magistrate, Gaya.
6. The Senior Superintendent of Police, Gaya.
7. The Sub-Divisional Officer, Sherghati, Gaya.
8. The SHO/Officer in Charge, Dobhi PS, Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Madhukar Mishra, Advocate
For the Respondent/s : Mr. Sita Ram Yadav, G.P-16
Mr. Rakesh Kumar Shrivastava, AC to GP-16
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 17-01-2025
In the instant petition, petitioner has prayed for
the following relief(s):-
i) To set aside the order dated
15.02.2024
passed by the learned Assistant
Commissioner of Excise, Gaya in Memo No.
125 dated 01.04.2023 in Excise
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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Confiscation Case No. 841/2022, and the
order dated 03.07.2023 passed by the
Excise Commissioner, Patna in Excise
Appeal Case No. 89/2023 in connection with
Dobhi P.S. Case No. 663/22.
(ii) To direct the respondents to release
the seized Mahindra Bolero bearing
Registration No. JH03L-5222, Engine No.
GHF4A55091, Chassis No.
MA1XA2GHKF5A22539, in favour of the
petitioner, which was stolen on 18.02.2022
from the house of the brother in law of the
petitioner and seized by Dobhi, Gaya PS on
30/07/2022.
(iii) To grant any other relief (s) as
deemed appropriate under the law.
2. The relevant facts of the case as emerging
from the record are that petitioner is the owner of
Mahindra Bolero vehicle bearing Chasis no.
MA1XA2GHKF5A22539, Engine no. GHF4A55091 which
was registered with the Transport Department with
Registration No. JH03L-5222. On 18.02.2022. The
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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Bolero vehicle of the petitioner was stolen from the
residence of his brother-in-law namely Ankit Kumar. The
petitioner, thereafter registered Nokha P.S. Case No. 47
of 2022 (Annexure-1) under Section 379 of the Indian
Penal Code on 20.02.2022.
3. Further case of the petitioner is that the
vehicle of the petitioner was later found with a new
number plate bearing JH09F-2828 and it was seized by
the Dobhi Police Station on 30.07.2022 for the alleged
recovery of 1035 Kgs of Mahua Flower and 05 litres of
illicit liquor and Dobhi P.S. Case No. 663 of 2022
(Annexure-2) was registered under Section 30(a) of the
Bihar Prohibition & Excise(Amendment) Act, 2018.
4. It is submitted by learned counsel for the
petitioner that without prior notice to the petitioner, the
seized vehicle was confiscated by the Assistant
Commissioner, Excise, Gaya in Excise Confiscation Case
No. 841 of 2022 (Annexure-3). It is further submitted
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that as soon as the petitioner became aware of seizure of
vehicle under Bihar Prohibition & Excise (Amendment)
Act, 2018, he approached the Excise Court, Gaya who
directed the Investigating Officer to submit a report in this
regard. The Investigating Officer has submitted the report
on 07.05.2023 (Annexure-4) stating that the petitioner
had no role in the crime and the vehicle was stolen from
the house of petitioner’s brother-in-law and Nokha P.S.
Case No. 47 of 2022 was registered in this regard.
5. The petitioner, thereafter filed an appeal
before Excise Commissioner, Bihar in Excise Appeal Case
No. 89 of 2023. The Excise Commissioner, vide order
dated 03.07.2023 (Annexure-7) directed the seized
vehicle to be released after imposition of appropriate
penalty as may be decided by the District Collector, Gaya,
after submission of prescribed form under Bihar
Prohibition and Excise Rules, 2021 by the owner of the
vehicle. The petitioner, thereafter filed an application
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(Annexure-5) before the Excise Commissioner, Patna
stating that his vehicle was stolen and F.I.R was
registered in this regard. During investigation, the
involvement of the petitioner was not found in the alleged
crime under Excise Act and it was found that his vehicle
was used with another false number plate by the accused
and imposing a penalty of Rs. 48000/- is unjust and
improper. However, no action was taken on the aforesaid
application dated 03.04.2024.
6. Per contra, learned counsel for the
respondent submitted that vehicle of the petitioner was
confiscated in a confiscation proceeding after giving
proper notice to the petitioner and as per direction
contained in Letter No. 633 dated 25.01.2023 issued by
the then Additional Secretary, Prohibition, Excise &
Registration Department, Government of Bihar to the
District Magistrates in Bihar. The petitioner has not
submitted the application in Form-IV to get his vehicle
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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released as per Rule 12A of the Bihar Prohibition & Excise
Rules, 2021 though being aware of the fact that his
vehicle has been seized in an Excise case.
7. Before we consider the rival submission of
the parties, it would be imperative to refer to the relevant
statutory provisions and case laws:-
8. Sections 47, 56, 57B, 58, 61, 92, 93, 95 of
the Bihar Prohibition and Excise Act, 2016 and the Bihar
Prohibition and Excise Rules, 2021 are relevant statutory
provisions in the aforesaid facts and circumstances.
9. Section 47 provides for liability of the
person who is under control of the vehicle knowingly
permits it to be used for commission by any other persons
of an offence punishable under provision of the Excise Act
to punishment in the same manner as if he had himself
committed the said offence. It reads as follows:-
“47. Penalty for allowing premises,
etc., to be used for commission of an
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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under this Act or otherwise, and having the
control or use of any house, room, enclosure,
space, animal or conveyance, knowingly
permits it to be used for commission by any
other person of an offence punishable under
any provision of this Act, shall be punishable in
the same manner as if he had himself
committed the said offence.”
10. Section 56 of the Act provides for
liability of seized vehicles, amongst other seized items,
for confiscation. As per this Section, as it stood prior to
amendment in 2022, vehicle used for carrying any
intoxicant or liquor is liable for confiscation. The pre-
amendment provision of Section 56 is relevant because
alleged offence has been committed on 17.04.2021.
Section 56 as stood prior to amendment in 2022, reads
as follows:-
“56. Things liable for confiscation.
Whenever an offence has been committed,
which is punishable under this Act.-
(a) any intoxicant or liquor unlawfully
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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stored, possessed, material, utensil,
implement, apparatus, package or covering
and or the other contents, if any, of such
receptacle, package or covering for the
purposes of storing, manufacturing or labelling
such intoxicant or liquer;
(b) any animal, vehicle, vessel or other
conveyance used for carrying any intoxicant or
liquor, or
(c) any premises or part thereof that may
have been used for storing or manufacturing
any liquor or intoxicant or for committing any
other offence under this Act;
shall be liable to be confiscated in a manner
prescribed under the provisions of the Act,
(d) The State Government, if deem
necessary, may issue necessary directions,
guidelines, Regulations and instructions with
respect to mode and manner of search,
seizure and confiscation.”
(Emphasis supplied)
11. Section 57B as inserted in 2022, by
way of amendment, provides that any vehicle used for
committing any offence punishable under the
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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Prohibition and Excise Act and having 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. This Section is
applicable to all pending confiscation proceedings by
virtue of Explanation no. 2. This Section reads as
follows:-
“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.
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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(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
proceedings 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.”
(Emphasis supplied)
12. Section 58 of the Act provides for the
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procedure and conditions for confiscation of the vehicle
or conveyance and other things by District Collector or
Officer authorized by him. As per Sub-section 1 of
Section 58, the officer seizing the vehicle is required to
report to the District Collector without any reasonable
delay and as per Sub-Section 2 if the Collector is
satisfied, as per the report, that an offence under this act
has been committed, he is authorized to confiscate the
vehicle, but, as per Sub-section 3, only after giving
reasonable opportunity to the person concerned for
hearing. Section 58 reads as follows:-
“58. Confiscation by District
Collector.-(1) Notwithstanding anything
Contained in this Act or any other law for
the time being in force, where anything
liable for confiscation under this Act is
seized or detained under the provisions of
this Act, the officer seizing and detaining
such property shall, without any
reasonable delay submit a report to the
District Collector who has jurisdiction
over the said area;
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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sub-section (1), the District Collector if
satisfied that an offence under this Act
has been committed, may, whether or
not prosecution is instituted for the
commission of such an offence and
whether or not a case is pending before
any court, order confiscation of such
property;
(3) The Collector shall, before passing
an order under sub- section (2), give a
reasonable opportunity to the person
concerned, of being heard;
(4) While making an order of
confiscation under sub- section (2), the
District Collector may also order that
such of the properties which the order of
confiscation relates, which in his opinion
cannot be preserved or are not fit for
human consumption, be destroyed.
Whenever any confiscated article has to
be destroyed in conformity with these
provisions, it shall be destroyed in the
presence of a Executive Magistrate or
officer ordering the confiscation or
forfeiture, as the case may be, or in the
presence of the Excise Officer not below
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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the rank of a Sub-Inspector;
(5) While making an order of
confiscation under sub- section (2), if the
District Collector is of the opinion that it
is expedient in the public interest to do
so, he may order the said property or any
part thereof to be sold by public auction
or dispose of departmentally and
proceeds deposited with the State
Government,
(6) The District Collector shall submit
a full report of all particulars of
confiscation to the Commissioner of
Excise within one month of such
confiscation.”
(Emphasis supplied)
13. Section 61 provides that when an order
for confiscation of any property, which includes vehicle
also, has been passed under section 58 of the Bihar
Prohibition and Excise Act, 2016 and such order has
become final, the property gets vested in the State
Government free from any encumbrance. Section 61
reads as follows:-
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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with the Collector.- When an order for
confiscation of any property has been
passed under Section 58 and such order
has become final in respect of the whole
or any portion of such property, such
property or portion thereof, as the case
may be, shall vest with the State
Government free from any
encumbrance.”
14. Section 92 provides for departmental
appeal against the final orders passed by the authorities
under the Act. The order passed by Excise Officer, lower
in rank than District Collector, is appealable to District
Collector within 60 days, order passed by District
Collector is appealable to Excise Commissioner and order
passed by Excise Commissioner is appealable to the
State Government within 90 days. However, no second
appeal is provided against an order passed by Excise
Commissioner. Section 92 reads as follows:-
“92. Appeals.-(1) All final orders
passed by any Excise Officer other than
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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under this Act, shall be appealable to the
Collector within sixty days from the date
of the order.
(2) All final orders passed by the
Collector and Excise Commissioner shall
be appealable to the Excise
Commissioner and the State Government
respectively within ninety days from the
date of the order complained of. Provided
that no second appeal shall lie against an
order passed by the Excise Commissioner
on appeal.
(3) The State Government may make
rules in this behalf.”
15. Section 93 provides for departmental
revision. The revisional power has been vested with the
State Government. Section 93 reads as follows:-
“93. Revision.- The State
Government may, on its own motion or
on an application made to it, call for and
examine the records of any proceeding
before any excise officer or any
document, including that relating to
renewal or refusal of license or grant of
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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purpose of satisfying itself as to the
correctness and legality of any order
passed in, and as to regularity of any
such proceeding and may, when calling
for such record, direct that the order be
not given effect till the pendency of the
examination of the record, so called for.
After examining the record, the State
Government may annul, reverse, modify
or confirm such order, or pass such other
order as it may deem fit.”
16. Under Section 95 of the Bihar
Prohibition and Excise Act, 2016, the Bihar Government
is empowered to make rules to carry out the purposes of
the Act. Bihar Prohibition and Excise Rules, 2021 has
been made by Bihar Government under Section 95 of the
Act. Rule 12A, as inserted in 2022 by way of
amendment, provides for release of vehicle, conveyance
etc. on payment of penalty. This Rule is applicable to all
pending confiscation/auction proceedings by virtue of its
Explanation. This Rule reads as follows:-
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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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 amount of penalty shall be as
decided by the Collector or the Officer
authorized by him. While imposing the
penalty, he shall have due regard to the
quantity of intoxicant recovered,
involvement of the vehicle owner and the
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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no case, the penalty should be less than
10% of the insured value of the vehicle
and more than Rs. 5 lakhs. 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. 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,
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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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, non-refundable.
(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.”
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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(Emphasis supplied)
17. The bare reading of Section 56(b) of the
Act clearly shows that any vehicle or conveyance can be
seized and confiscated under the Bihar Prohibition and
Excise Act, 2016 only when the vehicle has been used for
carrying any intoxicant or liquor. Section 58(3) of the Act
provides that during confiscation proceeding, the owner
of the vehicle has to be given opportunity of being heard.
Section 57 B(1) also provides that any vehicle, or other
conveyance used for committing any offence punishable
under the Act and seized may be released upon payment
of penalty. Rule 12-A(2) of the Bihar Prohibition and
Excise Rules, 2021 also provides that while imposing
penalty under Section 57-B of the Act, the authority
concerned is required to give due regard to the
involvement of the vehicle owner.
18. The first and foremost thing, which
emerges from the aforesaid discussion of the statutory
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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provisions, is that no vehicle can be seized or confiscated
without its use in commission of any offence under the
Bihar Prohibition and Excise Act, 2016. Under Section 30
of the Act, transport of illicit liquor or intoxicant is an
offence and in commission of such offence, a vehicle can
be used. As such, use of the vehicle in transport of illicit
liquor/intoxicant is sine qua non for its seizure and
confiscation. It also emerges that just use of the vehicle
to carry intoxicant or liquor is also not sufficient for its
seizure and confiscation. The involvement or connivance
of the owner of the vehicle in such illegal use of the
vehicle is also an essential prerequisite for confiscation of
the vehicle or imposing any penalty for release of the
vehicle. Such view has been consistently expressed by
this Court in various judicial pronouncements under writ
jurisdiction.
19. It is relevant to point out that in case of
direct involvement of the owner of the vehicle in
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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prohibited use of the vehicle, he is made accused in the
criminal case registered by the police. Even in case of his
indirect involvement by way of permission for or
connivance in use of his vehicle in commission of the
offence, he is liable to be accused under Section 47 of
the Act. As such, unless the owner of the vehicle is an
accused in the case, the court can not hold that the
owner of the vehicle is directly or indirectly involved in
the prohibited use of the vehicle.
20. It is also pertinent to note that in the light
of various pronouncements of this Court, Bihar
Government has issued letter dated 07.02.2020 bearing
Letter No. 13/HC-06- 55/2020-670. The letter has been
written by Additional Chief Secretary, Home Department
cum Prohibition, Excise and Registration Department to
all District Collectors, Police Officers and Excise Officers.
By this letter, the Government has clearly stated in para-
2 of the letter that as per direction of this Court, such
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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vehicle, from which no liquor has been recovered, will not
be confiscated. In para-3 of the letter, the Government
has stated that when the vehicle was being driven by the
driver in drunken condition but no liquor has been
recovered from the vehicle, only the driver would be
prosecuted under the Bihar Prohibition and Excise Act,
2016.
21. Coming to the case at hand, we find that
on 18.02.2022 the Bolero vehicle of the petitioner was
stolen and on 20.02.2022, the petitioner has filed a
complaint in this regard which was registered as Nokha
P.S. Case No. 47 of 2022 (Annexure-1). The vehicle of
the petitioner was later found with a new number plate
bearing JH09F-2828 and it was seized by the Dobhi
Police Station on 30.07.2022 for the alleged recovery of
1035 Kgs of Mahua Flower and 05 litres of illicit liquor
and Dobhi P.S. Case No. 663 of 2022 (Annexure-2) was
registered under Section 30(a) of the Bihar Prohibition &
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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Excise (Amendment) Act, 2018. Thereafter, the vehicle
of the petitioner was confiscated by the Assistant
Commissioner, Excise, Gaya vide order dated
15.02.2023 in Excise Confiscation Case No. 841 of 2022
(Annexure-3). The petitioner came to know about the
seizure of his vehicle under Bihar Prohibition & Excise
(Amendment) Act, 2018 after confiscation proceeding, in
April, 2023. The petitioner, approached before the Excise
Court, Gaya who directed the Investigating Officer to
submit a report in this regard. The Investigating Officer
has submitted the report on 07.05.2023 (Annexure-4)
stating that the petitioner had no role in the crime and
the vehicle was stolen from the house of petitioner’s
brother-in-law and Nokha P.S. Case No. 47 of 2022 was
registered in this regard. The petitioner, thereafter filed
an appeal before the Excise Commissioner, Bihar, Patna
in Excise Appeal Case No. 89 of 2023. The Excise
Commissioner, vide its order dated 03.07.2023
(Annexure-7) directed the seized vehicle to be released
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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in favour of the petitioner after imposition of appropriate
penalty as may be decided by the District Collector,
Gaya. The petitioner, thereafter filed an application
before the Excise Commissioner, Patna stating that his
vehicle was stolen and F.I.R was registered in this
regard. During investigation, the involvement of the
petitioner was not found in the alleged crime under
Excise Act and it was found that his vehicle was used
with another false number plate and imposing a penalty
of Rs. 48000/- is unjust and improper. However, no
action was taken on the aforesaid application of the
petitioner.
22. We also find that against the
petitioner/owner of the vehicle, there is no allegation of
his direct or indirect involvement in commission of the
alleged offence. Accordingly, he has not been arrayed as
accused in the criminal case registered by the police.
23. In view of the aforesaid facts and
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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circumstances of the case, we find that the twin
prerequisites for seizure and confiscation of a vehicle
under the Bihar Prohibition and Excise Act, 2016-use of
the vehicle in carrying/transporting the liquor or
intoxicant and the consent or connivance of the owner of
the vehicle in commission of the offence are not fulfilled.
Consequently the vehicle in question is not liable to be
seized and confiscated under the Act.
24. Hence, the impugned order is arbitrary
and hit by Article 14 of the Constitution. It is also
violative of Constitutional rights of the petitioner to hold
property as provided in Article 300 A of the Constitution,
which prohibits any deprivation of property without
authority of law. The Bihar Prohibition and Excise Act in
no way authorizes the official to seize or confiscate the
vehicle in the alleged facts and circumstances of the
case. Hence, the seizure and confiscation of the Bolero
vehicle in question is without any authority of law. The
Patna High Court CWJC No.15682 of 2024 dt.17-01-2025
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confiscation order, is accordingly liable to be quashed.
25. The concerned authority is hereby directed
to release the vehicle of the petitioner bearing bearing
Registration No. JH03L-5222, Chasis no.
MA1XA2GHKF5A22539, Engine no. GHF4A55091 within
a period of one week from the date of receipt of a copy of
this order.
26. The petition is allowed, accordingly.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, J)
Shageer/-
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