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2017 Supreme(Pat) 1164
IN THE HIGH COURT OF JUDICATURE AT PATNA
BIRENDRA KUMAR, J.
Rajan Sah, Son of Lakhu Sah – Appellant
Versus
The State of Bihar – Respondent
Criminal Writ Jurisdiction Case No. 1655 of 2017
Decided on : 06-10-2017
Advocate Appeared:
For the Petitioner:Mr. Hans Lal Kumar, Advocate
The court's decision was influenced by the pending challenge to the authority of the confiscation officer before a Larger Bench, which led to the immediate unsealing of the shop and release of land to the petitioner, subject to the final result of the pending Larger Bench decision.
Headnote:
Bihar Prohibition and Excise (Amendment) Act, 2016 - Sealing of Shop and Land - Court directed immediate unsealing of the shop and release of land to the petitioner, subject to the final result of a pending Larger Bench decision.
Fact of the Case:
The shop and land of the petitioner were sealed for violation of the Bihar Prohibition and Excise (Amendment) Act, 2016. The petitioner sought interim relief until the decision of a pending Larger Bench case challenging the authority of the confiscation officer.
Finding of the Court:
The court directed the immediate unsealing of the shop and release of land to the petitioner, subject to the final result of the pending Larger Bench decision. The petitioner was prohibited from disposing of the shop and land without permission from the District Magistrate, Sheohar.
Issues: The issue of whether the Executive Authority has the power to confiscate and seal the shop and land seized was under challenge before a Larger Bench. The petitioner sought interim relief until the decision of the pending Larger Bench case.
Ratio Decidendi: The court considered the pending challenge to the authority of the confiscation officer before a Larger Bench and directed the immediate unsealing of the shop and release of land to the petitioner, subject to the final result of the pending Larger Bench decision.
Final Decision: The court disposed of the writ application with the observation that the shop and land should be immediately unsealed and released to the petitioner, subject to the final result of the pending Larger Bench decision.
Heard learned counsels for the parties.
2. The shop and the land on which it situates appertaining to Khata No. 93, Kheshra No. 1736, Area 5.11 Dhurs and Khata No. 93, Kheshra No. 1737, Area 12.11 Dhurs of the petitioner has been sealed for violation of the provisions of the Bihar Prohibition and Excise (Amendment) Act, 2016 and for the occurrence aforesaid Purnahiya P.S. Case No. 19 of 2016 was registered and thereafter confiscation proceeding has been started.
3. The said order is under challenge in this criminal writ petition.
4. Submission of the learned counsel for the petitioner is that the issue whether the Executive Authority have power to confiscate and seal the shop and land seized in connection with the aforesaid case which power, is exercisable only by a Judicial Authority, is sub judice before a large Bench of this Court in L.P.A. No. 1647 of 2015 (Baleshwar Roy vs. The State of Bihar & Ors.). In the circumstances, till the decision of the L.P.A. aforesaid, further proceeding of Confiscation Case No. 17 of 2017 arising out of Purnahiya P.S. Case No. 19 of 2016 may kindly be stayed and the shop and land be put in possession of the petitioner by way of interim measure.
5. Learned counsel for the petitioner placed reliance on a judgment of this Court in a case of Smt. Manorama Devi @ Manorma Devi vs. The State of Bihar & Ors. (Cr.W.J.C. No. 605 of 2016) relevant part whereof is reproduced hereinbelow:
“Learned counsel for the petitioner confines to the prayer made in this writ petition to unsealing residential premises of the petitioner, from where allegedly a few bottles of liquor were recovered less than one month after the notification was issued on 05.04.2016.
Considering the facts and circumstances and considering the various orders that have been passed in various cases, we direct that the premises of the petitioner be unsealed without prejudice to the State in respect of any other matter which would be disposed of in accordance with law.”
6. Since the authority of the confiscation officer is under challenge before a Larger Bench of this Court in the referred L.P.A., it is directed that operation of the impugned order shall remain stayed till disposal of the L.P.A. aforesaid and shall be subject to the result of the L.P.A. aforesaid.
7. Considering the facts and circumstances of the case, let the respondents immediately unseal the shop and release the land of the petitioner and hand over its possession to the petitioner, subject to the final result of L.P.A. with condition that the petitioner shall not dispose of the said shop and land or put under encumbrances without permission of the District Magistrate, Sheohar.
8. With the aforesaid observation, this writ application stands disposed of.
