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2019 Supreme(Pat) 1761
IN THE HIGH COURT OF JUDICATURE AT PATNA
JYOTI SARAN, PARTHA SARTHY, JJ.
Deepak Kumar @ Dipak Kumar, Son Shri Ram Babu Pradhan - Petitioner
Versus
The State of Bihar through the Principal Secretary Excise Department, Patna, Bihar - Respondent
Civil Writ Jurisdiction Case No.8050 of 2019
Decided On : 08-07-2019
For the Petitioners: Mr. Alok Kumar Alok, Adv.
For the Respondents: Mr. Vikash Kumar (SC11)
The court has the discretion to grant provisional release of seized property, subject to conditions to protect the interests of the State.
Headnote:
Provisional Release - Bihar Prohibition and Excise Act, 2016 - The court granted provisional release of a seized vehicle in connection with a confiscation case, subject to certain conditions to protect the interests of the State.
Fact of the Case:
The petitioner sought provisional release of a seized motorcycle in connection with a confiscation case under the Bihar Prohibition and Excise Act, 2016.
Finding of the Court:
The court granted liberty to the petitioner to challenge the confiscation order before the appellate authority and allowed provisional release of the vehicle, subject to specified conditions.
Issues: Provisional release of seized vehicle, challenge to confiscation order, protection of State's interest.
Ratio Decidendi: The court considered the circumstances and granted provisional release of the vehicle, imposing conditions to protect the State's interest, based on a similar order in a previous case.
Final Decision: The writ petition was allowed, and the court directed the provisional release of the vehicle, subject to specified conditions and the outcome of the order in appeal.
JUDGMENT :
JYOTI SARAN, J.
1. Heard learned counsel for the petitioner and learned counsel for the State.
2. This application has been filed seeking provisional release of the Hero Passion Pro Motorcycle bearing registration No. BR-30Q-7518, Chasis No. MBLHA10BSGHJ52966, Engine No. HA10EVGHJ55758 seized in connection with Confiscation Case No. 466/2017 arising out of Case No. C2/456/2017 under the provisions of the Bihar Prohibition and Excise Act, 2016.
3. Learned counsel for the petitioner submits that instead of releasing the motorcycle the District Magistrate, Sitamarhi being the confiscating authority has passed an order on 8.12.2017 in Confiscation Case No. 466/2017 for confiscation of the vehicle in question. He further submits that the vehicle has not been auctioned.
4. Learned Counsel for the petitioner, however, submits that liberty may be granted to the petitioner to challenge the confiscation order in an appropriate jurisdiction by filing an appeal before the Commissioner within a period of 30 days from today.
5. In the circumstance noted where final orders have been passed in the confiscation proceedings, we grant liberty to the petitioner to challenge the order of confiscation before the appellate authority within a period of 30 days from today. In case such an appeal is preferred within the aforesaid period together with an application for condonation of delay, the appellate authority shall consider the same keeping in mind that the petitioner was prosecuting his remedy before this Court and the appeal shall be heard on its own merit and disposed of expeditiously.
6. Learned Counsel for the petitioner, at this stage, submits that because the appellate authority has no power to pass an interim order of release, he would press this application for a provisional release of the vehicle in question.
7. Learned Counsel for the petitioner submits that 64.500 liter of Nepali liquor has been seized; the vehicle is lying under open sky in the Police Station during last two year and if the release is not allowed, it would turn into a junk. He submits that the State is not going to gain by the vehicle turning junk. Learned Counsel further submits that the petitioner is willing to provide such surety and undertakings which may be required to protect the interest of the petitioner as well the State, during the pendency of the appeal.
8. Learned Counsel for the State is present and submits that in the given facts and circumstances of this case if at all the Court is willing to consider provisional release of the vehicle then interest of the State is required to be protected.
9. Bearing note of the order of release passed in similar circumstance in C.W.J.C. No. 8513 of 2018 whereby a provisional release has been allowed during the pendency of appeal subject to conditions imposed to protect the interest of the State, we take a similar view in the present case as well.
10. Accordingly, we direct that the vehicle in question be released provisionally in favour of the petitioner, if not already auctioned, on production of ownership and registration papers with respect to vehicle in question before the District Magistrate, Sitamarhi (Confiscating Authority) with one surety alongwith a Bank Guarantee or original title deed of immovable property situated within the District to the extent of the value of the vehicle as indicated in the insurance document. The petitioner while submitting the surety and the Bank Guarantee or the original title deed, as the case may be, 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 and shall not indulge in similar offence in future.
(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 appeal and shall not alienate the vehicle during this period.
(iii) The petitioner shall furnish an undertaking to produce the vehicle befor
