Patna High Court
Munna Ram vs The State Of Bihar on 30 January, 2024
Author: Jitendra Kumar
Bench: P. B. Bajanthri, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9504 of 2023
======================================================
Munna Ram, Son of Sri Shiva Nandan Ram, Resident of Village Janpara, P.S.
Rani Talab, District-Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of
Registration, Excise and Prohibition, Government of Bihar, Patna.
2. The District Magistrate cum Confiscation Authority, District- Patna, Bihar.
3. The Senior Superintendent of Police, District- Patna, Bihar.
4. The Station House Officer cum Investigating Officer, P.S. Dulhin Bazar,
District- Patna, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Chandan Kumar, Advocate
For the Respondent/s : Mr. Kumar Manish (SC-5)
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
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
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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
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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
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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 liable to be confiscated under the Bihar Prohibition
and Excise Act, 2016 or the petitioner is liable to pay penalty for
release under the Act.
8. Before we consider the rival submissions of the
parties, it would be imperative to examine the relevant statutory
provisions and case laws.
9. Sections 56, 57B, 58, 61 and Section 95 of the Bihar
Prohibition and Excise Act, 2016 and the Bihar Prohibition and
Excise Rules, 2021 are relevant statutory provisions in the
aforesaid facts and circumstances of the case.
10. Section 56 of the Act provides for liability of
seized vehicles, amongst other seized items, for confiscation. It
reads as follows:-
" 56. Confiscation of Seized Items:- Notwithstanding
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anything contained in Section 57B, whenever an offence
punishable under this Act, is committed, the Collector or
an officer authorized by him may confiscate such items
based on the report of the investigating officer.
(2) Such items may include -
(i) any premises or part thereof;
(ii) any animal, vehicle, vessel or conveyance;
(iii) any liquor or intoxicant;
(iv) any other item having bearing with the case;
Provided, where things as mentioned in Section 57 are to
be destroyed, then the Collector or an officer authorized
by him need not confiscate the same before their
destruction.
(3) The State Government may issue necessary
direction, guidelines, regulations and instructions with
respect to the mode and manner of search, seizure,
destruction and confiscation."
11. Section 57B as inserted in 2022, by way of
amendment, provides that any vehicle used for committing any
offence punishable under the Prohibition and Excise Act and
having been seized by any police officer or Excise Officer may
be released by the Collector upon payment of such penalty as
may be notified by the State Government. This Section reads as
follows:-
"57B. Things or premises liable to be released upon
penalty.-(1) Any animal, vehicle, vessel or other
conveyance used for committing any offence punishable
under this Act that has been seized by any police Officer
or Excise Officer may be released by the Collector upon
payment of such penalty as may be notified by the State
Government.
(2) Any premises or part thereof used for committing any
offence punishable under this Act that has been seized by
any police Officer or Excise Officer may be released by
the Collector upon payment of such penalty as may be
notified by the State Government.
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(3) If the person concerned does not pay the penalty, then
the Collector shall proceed to confiscate the said animal,
vehicle, vessel or other conveyance and premises as per
section-58.
Explanation 1.- It shall not be a right of the accused to get
his conveyance, item or premises released upon payment
of the required penalty. The Collector, based upon a report
by a police officer or an excise officer, may, for reasons to
be récorded in writing, still refuse to release the said
conveyance, item or premises and proceed ahead with
confiscation and auction/destruction.
Explanation 2.-The Collector shall, from the date of this
Amendment coming into force, close the on-going
confiscation proceedings if the person concerned pays the
penalty as notified and release such vehicle, conveyance
or premises.
Explanation 3.-Such release shall not affect the outcome
of trial, if any before the Special Court."
(Emphasis supplied)
12. Section 58 of the Act provides for the procedure
and conditions for confiscation of the vehicle or conveyance and
other things by District Collector or Officer authorized by him.
As per Sub-section 1 of Section 58, the officer seizing the
vehicle is required to report to the District Collector without any
reasonable delay and as per Sub-Section 2 if the Collector is
satisfied, as per the report, that an offence under this act has been
committed, he is authorized to confiscate the vehicle, but, as per
Sub-section 3, only after giving reasonable opportunity to the
person concerned for hearing. Section 58 reads as follows:-
"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
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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."
(Emphasis supplied)
13. Section 61 provides that when an order for
confiscation of any property, which includes vehicle also, has
been passed under section 58 of the Bihar Prohibition and Excise
Act, 2016 and such order has become final, the property gets
vested in the State Government free from any encumbrance.
Section 61 reads as follows:-
"61. Confiscated articles to vest with the Collector.-
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When an order for confiscation of any property has been
passed under Section 58 and such order has become final
in respect of the whole or any portion of such property,
such property or portion thereof, as the case may be, shall
vest with the State Government free from any
encumbrance."
14. Under Section 95 of the Bihar Prohibition and
Excise Act, 2016, the Bihar Government is empowered to make
rules to carry out the purposes of the Act. Bihar Prohibition and
Excise Rules, 2021 has been made by Bihar Government under
Section 95 of the Act. Rule 12A, as inserted in 2022 by way of
amendment, provides for release of vehicle, conveyance etc. on
payment of penalty. This Rule reads as follows:-
"12A. Release of Vehicles, Conveyance etc. on
Payment of Penalty.- (1) If any vehicles, conveyance,
vessel, animal etc. has been seized by any police or excise
officer under the Act, then in terms of Section 57B (1) of
the Act, the Collector or an officer authorized by him upon
receipt of an application in Form IV by the owner of the
said conveyance or vehicle etc., may release the said
conveyance or vehicle upon payment of such penalty as
may be ordered by the Collector or the officer authorized
by him.
Provided, where it is not possible to ascertain the owner of
the vehicle or the owner is not coming to claim the
vehicle, the Collector or the officer authorized by him,
after waiting for 15 days from the date of seizure, shall
proceed to confiscate and auction the vehicle as per the
provisions of the Act.
(2) The amount of penalty shall be as decided by the
Collector or the Officer authorized by him. While
imposing the penalty, he shall have due regard to the
quantity of intoxicant recovered, involvement of the
vehicle owner and the latest insurance value of the
vehicle. In no case, the penalty should be less than 10% of
the insured value of the vehicle and more than Rs. 5 lakhs.
The insured value is the value of the vehicle as assessed
by the insurance company. Where, the insured value is not
available or the Collector or the Officer authorized by him
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has reason to believe that the vehicle is undervalued, he
shall get the valuation done by the District Transport
Officer. In any case, the Collector shall not wait beyond
15 days from the date of seizure and if during this period,
the accused/owner does not pay up the penalty, he shall
proceed with the confiscation/auction."
(3) Notwithstanding above, if on a report by police officer
or excise officer, the Collector or the officer authorized by
him is satisfied that releasing the vehicle or conveyance
shall not be in the public interest, he shall proceed ahead
with the confiscation of the said vehicle or conveyance
and its subsequent auction/disposal.
(4) Where the conveyance is such that its
valuation/insurance is not possible, the Collector or the
officer authorized by him shall impose such fine as he
deems fit. While imposing such fine, the Collector or the
officer authorized by him shall have due regard to the
economic status of the individual, nature of his
involvement in the crime and the quantum of intoxicant
recovered.
(5) Such penalty shall be, regardless of the outcome of the
trial if any, before the Special Court, non-refundable.
(6) The owner of the vehicle/conveyance shall, after the
release of the vehicle/conveyance, produce the
vehicle/conveyance as and when required by the
authorities.
Explanation. In all pending/ongoing cases of
confiscation/auction of vehicles, the Collector or the
officer authorized by him may give an opportunity to the
existing owner to pay the aforesaid penalty and get the
vehicle released. Upon satisfaction about ownership and
upon payment of such penalty, the ongoing
confiscation/auction proceeding may be dropped and the
vehicle released."
(Emphasis supplied)
15. Rule 13A of the Bihar Prohibition and Excise Rules
2021 as inserted in 2022 by way of amendment provides for the
procedure of confiscation of vehicle etc. It reads as follows:
"13A. Procedure of confiscation of
vehicle/conveyance etc.-(1) Where it is decided by the
Collector that the vehicle is not to be released on penalty
or where the owner does not pay the required penalty, the
confiscation proceeding shall be initiated. The proposal
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for confiscation of the conveyance shall be sent the
police/excise officer to the Collector (or an officer
authorized by him) within 30 days from the date of
seizure. The officer concerned shall immediately start the
confiscation proceeding.
In case of delay of beyond 30 days, in
submission of the proposal for confiscation, the
police/excise officer will have to explain the delay.
(2) The officer concerned, on receipt of
proposal for confiscation of any vehicle(s) or other
conveyances from police/excise officer, shall issue show
cause notice to owner of the said vehicle or the vessel or
other conveyance. Simultaneously. he shall issue notice to
the District Transport Officer and the Chemical Examiner
for their reports.
(3) Such notice issued by the officer shall be
served as per procedure prescribed in the Code of
Criminal Procedure, 1973 for service of summons. He
shall obtain report from the District Transport Officer or
any authority authorized for the purpose of registration of
the conveyance and the report of chemical examiner
within 30 days of seizure.
(4) The officer shall provide reasonable
opportunity of hearing to the owner. The
investigating/inquiry officer shall also be given
opportunity to participate in such hearing.
(5) If, on the date fixed for hearing, the
person(s) to whom the notice has validly been served
fail(s) to appear in the proceeding on two consecutive
dates fixed for hearing, the confiscating authority shall
proceed to pass the order ex-parte.
6) The officer, after hearing the parties, on
satisfaction that an offence has been committed in terms
of the Act, shall pass appropriate order with respect to
seized vehicle or vessel or conveyance as the case may be.
7. The officer shall ensure that the order for
confiscation is pass within 90 days from the date of
seizure of the vehicle.
8. Any person aggrieved by the order passed by
the Collector under the provisions of the Act may file
appeal in the manner prescribed under these rules."
(Emphasis supplied)
16. The bare reading of Section 57B(1) of the Act
clearly provides that any vehicle, or other conveyance used for
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committing any offence punishable under the Act and seized
may be released upon payment of penalty. Rule 12-A(2) of the
Bihar Prohibition and Excise Rules, 2021 also provides that
while imposing penalty under Section 57-B of the Act, the
authority concerned is required to give due regard to the
involvement of the vehicle owner.
17. From the aforesaid provisions, it emerges, by
express provisions or necessary implication that the use of the
vehicle in commission of the offence under the Act is sine qua
non for confiscation or release on payment of penalty. If the
vehicle in question is no way involved in the alleged offence, no
penalty could be imposed upon the owner for its release, no
confiscation proceeding could be started in regard to the vehicle.
When the driver of a vehicle is found to have consumed
intoxicant or liquor in violation of the Bihar Prohibition and
Excise Act, 2016, no one can contend that the vehicle was used
in commission of the offence under the Act. Hence, the vehicle
cannot be seized and confiscated under the prohibition Act. At
most, the driver may be prosecuted for the offence committed.
On several occasions, seizure and confiscation of vehicle being
driven by the driver in drunken condition has been deprecated
by this Court, if no recovery of contraband has been made from
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the vehicle. Diwakar Kumar Singh vs. State of Bihar [2018
(3) BLJ 85] and many other judgments may be referred to.
18. It is also pertinent to note that in the light of
various pronouncements of this Court, Bihar Government has
issued letter dated 07.02.2020 bearing Letter No. 13/HC-06-
55/2020-670. The letter has been written by Additional Chief Secretary, Home Department cum Prohibition, Excise and Registration Department to all District Collectors, Police Officers and Excise Officers. By this letter, the Government has clearly stated in para-2 of the letter that as per direction of this Court, such vehicle, from which no liquor has been recovered, will not be confiscated. In para-3 of the letter, the Government has stated that when the vehicle was being driven by the driver in drunken condition but no liquor has been recovered from the vehicle, only the driver would be prosecuted under the Bihar Prohibition and Excise Act, 2016.
19. Coming to the case at hand, we find that no recovery of any contraband was made from the vehicle. As per the allegation, vehicle was only being driven by the driver in drunken condition. In such situation, the vehicle in question is not liable to be seized and confiscated under the Bihar Prohibition and Excise Act, 2016.
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20. However, for offence of rash and negligent driving under the IPC, as alleged in the FIR by the police, the vehicle could be seized for producing before the trial court, as and when required during trial. However, for offence under the IPC, the vehicle cannot be confiscated or retained by the Police or any authority. It has to be released to custody of the owner with undertaking to produce it before the trial court as and when directed by it. The concerned authority has already released the vehicle to the Petitioner with undertaking in pursuance to our interim order dated 10.08.2023, whereby we had invoked our writ jurisdiction to direct the concerned authorities to release the vehicle to the Petitioner. That interim order dated 10.8.2023 is finally confirmed in the facts and circumstances of the case.
21. It is also necessary to hold that the vehicle in question is not liable to be confiscated under the Bihar Prohibition and Excise Act, 2016, nor the petitioner/owner of the vehicle is liable to pay any penalty under the Act for release of the vehicle to him in the alleged facts and circumstances. Accordingly, the Respondents are directed neither to initiate any Confiscation Proceeding in regard to the vehicle in question, nor to impose any penalty upon the petitioner to release the vehicle to him.
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22. The petition is allowed, accordingly.
(Jitendra Kumar, J.) I agree.
(P. B. Bajanthri, J.) S.Ali/Ravishank ar/Chandan/-
AFR/NAFR AFR CAV DATE 11.08.2023 Uploading Date 30.01.2024 Transmission Date