CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date :30-01-2024 The present civil writ petition under Article 226 of the Constitution of India has been preferred praying for the following reliefs:

“(1) Release of the Tata Vehicle 207 RX bearing Registration No. BR-01-GH-1131 in favour of the petitioner which is seized in connection with Dulhin Bazar P S Case No. 108 of 2022 dated 09.05.2022 instituted Under Section 279 / 337 and 338 of the Indian Penal Code read with Section 37 (b) (c) of the Bihar Prohibition and Excise Act, 2016 as amended in 2018 within the jurisdiction of Dulhin Bazar Police Station ;

(ii) Restraining the Respondents from taking any coercive action in connection Dulhin Bazar PS Case No. 108 of 2022 dated 09.05.2022 instituted Under Section 279 / 337 and 338 of the Indian Penal Code read with Section 37 (b) (c) of the Bihar Prohibition and Excise Act, 2016 as amended in 2018 within the jurisdiction of Dulhin Bazar Police Station. ”

2. The relevant facts, as emerging from the record, are that on written report of one Saurabh Sinha, Dulhin Bazar P.S. Case No. 108 of 2022 was registered on 09.05.2022 for offences punishable under Sections 279, 337 and 338 of the Indian Penal Code and Section 37 (b)(c) of the Bihar Prohibition and Excise Amendment Act, 2018 against one Sobhnath Mochi. As per the report, on 09.05.2022 the informant along with his uncle were going from his village to Vikram for work. All of a sudden, one pickup vehicle bearing registration no. BR-01-GH-1131, coming from opposite direction, hit the informant and his uncle due to negligence of the driver and high speed of the vehicle. The vehicle coming from behind was also affected and two people namely Rahul Kumar and Chittranjan Kumar were badly injured. Thereafter, they were taken to the PHC Dulhin Bazar Hospital and from there, doctors referred them to Patna. The driver of the vehicle was apprehended and the vehicle was seized by the police and the apprehended accused disclosed his name as Shobhnath Mochi. In breath analyzer test, he was found to have consumed 311 mg/100 ml alcohol.

3. During the course of hearing, it has been informed by Ld. counsel for the State that in pursuance to the order of this Court dated 10.08.2023, the vehicle in question has been released to the petitioner with some undertaking.

4. Heard Ld. Counsel for the petitioner and Ld.

Counsel for the respondents.

5. Ld. counsel for the petitioner submits that as per the alleged facts and circumstances, it is crystal clear that there was no recovery of any illicit liquor or intoxicant from the vehicle and vehicle was only being driven by the driver in a drunken condition. In such situation, there are several pronouncements of this Court to the effect that in such type of facts and circumstances, the vehicle is not liable for seizure and confiscation under the Bihar Prohibition and Excise Act, 2016. Only the driver could be prosecuted for offence committed under the Act. Even the Government of Bihar has issued letter to this effect. In such situation, the Respondent-official may be directed not to proceed with confiscation proceeding under the Bihar Prohibition and Excise Act in regard to the vehicle in question which has already been released to the petitioner.

6. However, Ld. counsel for the Respondent submits that vehicle in question has already been released without any penalty and only undertaking has been taken from the petitioner to produce the vehicle before the trial court concerned, if and when required during trial. He however maintains that the vehicle in question is also liable for confiscation under the Bihar Prohibition and Excise Act in view of the facts and circumstances of the case or the petitioner is liable to pay penalty for release of the vehicle under the Act.

7. In view of the aforesaid facts and circumstances and the rival submissions of the parties, the legal question which arises for consideration by this Court is whether the vehicle in question is