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IN THE HIGH COURT OF JUDICATURE AT PATNA
P. B. BAJANTHRI and JITENDRA KUMAR, JJ.
CWJC No.10227 of 2022
(30.1.2024)
Shanti Devi ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Bihar Prohibition and Excise Act, 2016 – Sections 32, 47, 56, 57B, 58, 60, 61, 92, 93, 95 – Bihar Prohibition and Excise Rules, 2021 – Rule 14 – Seizure of IMFL – Petition seeking release of seized vehicle – Any vehicle or conveyance can be seized and confiscated under Bihar Prohibition and Excise Act, 2016 only when vehicle has been used for carrying any intoxicant or liquor – Use of vehicle in transport of illicit liquor/intoxicant is sine qua non for its seizure and confiscation – Just use of vehicle to carry intoxicant or liquor is also not sufficient for its seizure and confiscation – Involvement or connivance of owner of vehicle in such illegal use of vehicle is also a prerequisite for seizure and confiscation of vehicle or imposing any penalty for release of vehicle – There may be a situation where a vehicle has been stolen or robbed by criminal to carry intoxicant or liquor – In such situation also, it cannot be contended that there was involvement or connivance of owner in commission of offence under the Act – For such illegal use of vehicle, innocent owner of vehicle cannot be punished by seizure and confiscation of vehicle – There is also possibility of a situation where in a public transport, a passenger may be carrying some contraband in his clothes or small carry-bag without any knowledge of owner of vehicle or conductor or driver of vehicle – In such situation also, vehicle cannot be said to be used for conveying contraband and it cannot be liable to be seized and confiscated – Such situation may happen even in a train where passengers may be carrying small bag with contraband – It does not mean that train was used for conveyance of contraband. (Paras 22, 23, 25 and 26)
Bihar Prohibition and Excise Rules, 2021 – Rule 14 – Bihar Prohibition and Excise Act, 2016 – Sections 32, 47, 56, 57B, 58, 60, 61, 92, 93, 95 – Seizure of IMFL – Petition seeking release of seized vehicle – Word "use" cannot be interpreted liberally giving expansive meaning – It has to be interpreted strictly as it has penal consequences – Even object and scheme of Bihar Prohibition and Excise Act does not warrant expansive interpretation – At most, persons who were found in illegal possession of contraband may be prosecuted – Vehicle in question is not liable to be seized and confiscated under the Act – Persons found to be in illegal possession of contraband may be prosecuted for offence committed under the Act – Orders passed by authorities concerned for confiscation and auction of car in question are arbitrary and hit by Article 14 of Constitution – They are also violative of Constitutional right of petitioner to hold property as provided in Article 300 A of Constitution – Seizure, confiscation and auction of car in question are without any authority of law – These orders are liable to be quashed – Petitioner, whose constitutional right to property has been violated, is entitled to adequate compensation – She is also entitled to compensation on account of expenditure and harassment in course of forced litigations – No direction could be issued to State legislature or executive to amend Rule 14 of Bihar Prohibition and Excise Rules, 2021 – Judiciary cannot give direction to legislature to enact or amend any law – Power to enact or amend any law is a constitutional power vested in legislature – District Magistrate cum Collector directed to pay insurance value of vehicle in question to Petitioner along with compensation of Rs. 50,000/- to Petitioner. (Paras 27, 28, 29, 30, 33 and 34)
Jitendra Kumar, J. – The present Civil Writ Petition, under Article 226 of the Constitution of India, has been preferred praying for the following reliefs: –
“(i) To issue a writ of certiorari quashing the auction notice dated 11.01.2022 and auction of petitioner's vehicle.
(ii) To issue a writ of Mandamus directing the respondents to hand over the vehicle to the petitioner upon payment of penalty;
(iii) To issue a writ of mandamus directing the respondents to amend Rule 14 of the Bihar Prohibition and Excise Rules, 2021, as Rule 14 is making the remedy of revision under Section 93 of the Act infructuous/redundant/meaningless;
(iv) To issue a writ of Mandamus directing the respondent's to pay compensation to the petitioner for auctioning the vehicle of the petitioner before the passing of the order of Revision.
(v) Issuance of any other writ(s), order(s), or directions) as may be deemed fit and proper by this Hon'ble Court.”
2. The relevant facts, as emerging from the record, are that on 09-07-2021 at around 04:30 a.m., when the police patrolling team was checking vehicle at Mastan Chowk, a Red Colour MHawk 100 Mahindra TUV 300, bearing Registration No. BR-43P-6309 was coming from Kishanganj in which four people were sitting. The police team by signs directed them to stop but they did not stop and fled. Another vehicle white pickup having no number plate was also coming behind the red vehicle and both the vehicles fled. The police gave a chase and managed to stop the red color vehicle when the people sitting in the vehicle tried to run, but they were apprehended with the help of police team at around 5:15 a.m. at Pucca road going towards Bahadurgan. However the white pick-up managed to escape. The apprehended four persons, when asked to tell their names, they disclosed their names as; (1) Mukesh Kumar, aged about 21 yrs S/O Makhan Prasad Yadav; (2) Niranjan Kumar, aged about 24 yrs, S/O Rabindra Gupta; (3) Sonu Kumar, aged about 22 yrs, S/O Satyanarayan Choudhary; (4) Pintu Kumar, aged about 27 yrs S/O Shatrudhan Prasad Yadav. Thereafter the car was searched. Twenty four bottles of 'MC Dowells No. 1Luxury Premium Whisky' 'FOR SALE IN ARUNACHAL PRADESH ONLY' each bottle containing 375 ml of IMFL were found under the seat. Thus in total nine litres of IMFL was found. Despite further search, no paper of vehicle was found. Mobile phones were recovered from them. On questioning the four persons about the liquor, they informed that the IMFL recovered from Red color Mahindra TUV 300 belonged to them and that they are into liquor trade for two years and they bring liquor from Dalkola&Pajipara Siliguri West-Bengal and kept in Madhepura for sale and as and when liquor was sold, the profit was shared among them. Today also from Dalkola, West Bengal, they hired a pick-up from a person they don't know and were importing 40 cartoons of liquor & kept 24 bottles in Red Colour Mahindra Tuv 300 for consuming it in transit. Consequently, Kochadhama P.S. Case no. 194 of 2021 came to be lodged on 9.7.2021 against the said four persons; owner of Red Colour Mahindra Tuv 300 and the unknown driver of White color pick up and others.
3. Subsequently, on police report, District Magistrate-cum-Collector, Kishanganj initiated confiscation proceeding bearing Confiscation Case No. 559 of 2021 and vide order dated 16.10.2021, passed in the confiscation case, the vehicle bearing Registration No. BR-43P-6309 was confiscated, holding that the seized vehicle was used in transportation and distribution of illicit liquor, which is violation of Bihar Prohibition and Excise Act, 2016. District Magistrate-cum-Collector, Kishanganj further directed to sell the vehicle in question in public auction and to deposit the sale proceed in the State treasury. The said confiscation order of the District Magistrate-cum-Collector, Kishanganj was challenged by the petitioner before Excise Commissioner, Patna in Excise Appeal Case No. 786 of 2021 and the Excise Commissioner, vide order
Confiscation of a vehicle under the Bihar Prohibition and Excise Act requires evidence of the owner's consent or involvement in illegal activities; failure to establish this renders confiscation inva....
Confiscation of a vehicle under the Bihar Prohibition and Excise Act requires direct involvement of the owner in the offense; without such involvement, confiscation orders are deemed arbitrary and un....
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