CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)

Date : 05-07-2023

1. The petitioner is aggrieved with the seizure of his vehicle (Hyundai Verna) bearing Registration No. UP65EN- 5612, Chassis No. MALC841GTNM348197, Engine No.

G4FLNV375869.

2. An FIR was registered on 02.12.2022 as Rajeev Nagar P.S. Case No. 642 of 2022, on seizure of the vehicle for reason of recovery of 100 ml of foreign liquor from the vehicle.

3. Chapter-VI of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred as “Act”) deals with offences and penalties. Section 30 of the Act provides the penalties for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor. The presumptive nature of the penal provisions is apparent from Section 32. Sections 30 and 32 of the Act, therefore, are the most relevant provisions applicable in the instant case for better appreciation of Rules 12A and 12B of the Bihar Prohibition and Excise Rules, 2021 (hereinafter referred as “Rules”). Sections

30 and 32 of the Act reads as follows:-

“30. Penalty for unlawful manufacture, Import, export, transport, possession, sale, purchase, distribution, of intoxicant or liquor.-- Whoever, in contravention of any provision of this Act or of any rule, regulation, order made, notification issued thereunder, or without a valid license, permit or pass issued under this Act, or in breach of any condition of any license, permit or pass renewed or authorisation granted thereunder-

(a) Manufactures, possesses, buys, sells, distributes, collects, stores, bottles, imports, exports, transports, removes or cultivates any intoxicant, liquor, hemp; or (b) Constructs or establishes or works in any manufactory, distillery, brewery or warehouse; or (c) Manufactures, uses, keeps or has in his possession any material, utensil, implement or apparatus, or uses any premises, whatsoever, for the purpose of manufacturing any intoxicant or liquor; or (d) Manufactures any material or film either with or without the State Government logo or logo of any State or wrapper or any other thing in which liquor or intoxicant can be packed or any apparatus or implement or machine, for the purpose of packing any liquor or intoxicant; or (e) Removes any liquor or intoxicant from any distillery, brewery, warehouse, other place of storage licensed, established, authorized or continued under this Act; or (f) Manufactures, possesses, sells, distributes, bottles, imports, exports, transports or removes, any preparation made with or without the use of any intoxicant or liquor, which can serve as an alcohol or a substitute for alcohol and is used or likely to be used or consumed for the purposes of getting intoxicated;

shall be punishable with imprisonment for the term which may extend to life and with fine which may extend to ten lakh rupees.

Provided that the punishment:

(a) For the first offence shall not be less than five years imprisonment and fine of not less than one lakh rupees, and (b) For the second and subsequent offences shall not be less than ten years rigorous imprisonment and fine of not less than five lakh rupees.

32. Presumption as to commission of offence in certain cases.—(1) In prosecution of an offence under this Act, the accused person would have to account for the possession of any liquor, intoxicant, material, utensil, implement or apparatus involved in manufacture or storage of such liquor.

(2) In the event of a failure to offer a satisfactory explanation, there shall be a presumption that the accused person is guilty of the commission of such offence, unless proved otherwise.

(3) Where any equipment, machinery, animal, vessel, cart, vehicle, conveyance or any premises are used in the commission of an offence under this Act, and are liable to confiscation and/or to be sealed, the owner or occupier thereof would need to account satisfactorily, and in the absence of a satisfactory explanation the presumption that accused person committed