DINESH KUMAR SINGH, J.:–Heard Mrs. Rina Sinha, learned counsel for the petitioner and Mr. Kumar Pankaj, learned A.C. to Standing Counsel No. 5.

2. The present writ application has been filed for release of PASSION PRO motorcycle bearing registration no. JH-12H-8304, which has been seized in connection with Govindpur P.S. Case No. 57 of 2016 registered for the offence punishable under Section 47(a) of the Bihar Excise Amendment Act, 2016. The relief, as prayed for, in paragraph no. 1 of the writ petition reads as follows:—

“That, the present writ application is being filed by the petitioner for issuance of an appropriate writ/writs directing the respondents to release the vehicle of the petitioner which was seized by Umashankar S.H.O. of Govindpur P.S. in Govindpur P.S. Case No. 57/2016 which is pending before Lrd. Special Judge Excise, Patna”

3. The prosecution case got initiated on the written report of Umashankar, Station House Officer, Govindpur P.S. addressed to the Chief Judicial Magistrate, Nawada to the effect that on 07.07.2016 at about 2.15 P.M. the Block Development Officer, Govindpur informed the informant that his driver Ibrahim has seized the liquor in Mahabara. Consequently, the informant along with Police force reached at the spot where the driver of the B.D.O., namely, Ibrahim conveyed that four boys escaped from the scene after leaving two motorcycles and he has kept the two motorcycles and the liquor near his house and consequently the informant seized the two motorcycles one being red colour Shine motorcycle bearing Registration no. B.R.-27E-5071 and another black colour Passion Pro motorcycle, without any registration number plate and a white colour sack was kept at the same place, which contained a carton box. The seizure was made near the house of Ibrahim situated in village- Mahabara. Consequently, it was searched whereupon twenty four bottles of Kingfisher Beer was found from a white sack and from the dicky of black colour Passion Pro motorcycle nine bottles of 375 ml each of Indian make foreign liquor were recovered. Thereafter the seizure was made leading to registration of Govindpur P.S. Case No. 57 of 2016.

4. Learned counsel for the petitioner submits that petitioner is the owner of the Passion Pro motorcycle bearing Registration no. JH-12H-8304. The certificate of registration of the vehicle in question has been brought on record as Annexure- 2 to the present writ petition. It is further submitted that the motorcycle in question has not been seized by the informant/ Officer-in-charge of the case. The motorcycle was in parked position. Learned counsel for the petitioner further submits that though the motorcycle in question has been seized, but admittedly petitioner was not apprehended from the spot. It is further submitted that the F.I.R. was registered on 07.07.2016 but it was received in the court of learned Chief Judicial Magistrate, Nawada on 10.07.2016. The writ application was filed on 10.12.2019. The matter was adjourned on 06.01.2020 to enable learned counsel for the respondent – State to seek instruction and file counter affidavit, and thereafter, again it was taken up, but no counter affidavit was filed, and ultimately, the Additional Superintendent of Police-cum- Nodal Officer, Prohibition Cell, Nawada recommended for confiscation of the motorcycle in question however, till date no confiscation proceeding has been initiated and the motorcycle is rotting in open sky. The provisions of Bihar Excise (Amendment) Act, 2016 is not applicable since the case was registered prior to coming into force of this Act.

5. Learned counsel for the respondent–State on the basis of counter affidavit filed on behalf of the respondent nos. 4 and 5 i.e. Superintendent of Police, Nawada and S.H.O., Govindpur, Nawada, respectively, submits that recovery was made from the motorcycle also, though at the time of seizure, the motorcycle in question and the liquor were found in the constructive possession of the driver