S. B. Slnha, J.

1. This application raises a question aa to whether the state is entitled to impose penal duty on the alleged was stage rectified spirit during transit which was unfit for human consumption. The petitioner has a distillery at Mirgang where rectified spirit i. e. spirit of 65.5 to 68.00 overproof strength containing 95% alcohol is manufactured which is unfit for human consumption. The petitioner has been granted exclusive privilege under section 22 of the Bihar and Orissa Excise Act (hereinafter referred to as the Act) for whole sale supply of rectified spirit to the Government warehouses situated in Bhojpur District.

2. Allegedly one tanker of spirit was despatched for three country spirit ware-bouses situated in Bhojpur district namely, Behea, Koransarai and Garhani in 3 different chambers of the tanker meant for the three aforesaid ware houses. According to the petitioner a leakage in the said tanker took place resulting in late arrival of the aforementioned tanker in the warehouses. According to the petitioner as there had been a purported transit wastage of 268.7 L. P. liters, by the Commissioner of Excise passed the impugned order dated 21-7-1981 as con