ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 05-12-2024 In the instant writ petition, the petitioner has prayed for the following relief(s):

“(i) For issuance of writ in the nature of certiorari for quashing of order dated 26.08.2022 passed by Respondent no.3 in Misc (Excise) Case No.17 of 2021-22 whereby petitioner’s vehicle Scorpio bearing No.BR-11PB-9995 has been confiscated and by the said order he has directed to Superintendent of excise, Bhagalpur to sell the vehicle through open auction.

(ii) For issuance of writ in the nature of Mandamus direction to Respondents to release the petitioner’s vehicle Scorpio bearing BR-11PB-9995 in favour of petitioner.

(iii) For issuance of appropriate writ, order, direction save and except in accordance with law.”

2. Learned counsel for the respondents-State raised a preliminary objection to the extent that the present writ petition has been filed after one year from the date of cause of action accrued to the petitioner insofar as confiscation read with the auction proceedings dated 26.08.2022 and 06.10.2022 respectively.

3. For filing writ petition, there is no time limit stipulated. In the absence of stipulation of time limit for filing writ petition, one has to draw inference that whether is there any latches on part of petitioner or not. Question of latches would arise as and when if writ petition is filed beyond three years with reference to the principle insofar as filing of suit. For filing of suit, limitation would be three years. Therefore, both delay and latches is not forthcoming in the present case. 4. It is further submitted that the petitioner has not exhausted statutory remedy of appeal before the Appellate Authority against the confiscation order dated 26.08.2022.

5. We could have referred the matter to the Appellate Authority. However, there is a violation of statutory provisions insofar as conducting confiscation proceedings. Section 58 of the Bihar Prohibition and Excise Act, 2016 relates to confiscation by District Collector and it reads as under:

“58. Confiscation by District Collector.-(1)

Notwithstanding anything contained in this Act or any other law for the time being in force, where anything liable for confiscation under this Act is seized or detained under the provisions of this Act, the officer seizing and detaining such property shall, without any reasonable delay submit a report to the District Collector who has jurisdiction over the said area;

(2) On receipt of the report under sub-section (1), the District Collector if satisfied that an offence under this Act has been committed, may, whether or not prosecution is instituted for the commission of such an offence and whether or not a case is pending before any court, order confiscation of such property;

(3) The Collector shall, before passing an order under sub-section (2), give a reasonable opportunity to the person concerned, of being heard;

(4) While making an order of confiscation under sub-section (2), the District Collector may also order that such of the properties which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed. Whenever any confiscated article has to be destroyed in conformity with these provisions, it shall be destroyed in the presence of a Executive Magistrate or officer ordering the confiscation or forfeiture, as the case may be, or in the presence of the Excise Officer not below the rank of a Sub-Inspector;

(5) While making an order of confiscation under sub-section (2), if the District Collector is of the opinion that it is expedient in the public interest to do so, he may order the said property or any part thereof to be sold by public auction or dispose of departmentally and proceeds deposited with the State Government;

(6) The District Collector shall submit a full report of all particulars of confiscation to the Commissioner of Excise within one month of such confiscation.”

Underline Supplied

6. Rea