Patna High Court
Mahadev Carrier Pvt. Ltd vs The State Of Bihar And Ors on 1 April, 2019
Equivalent citations: AIRONLINE 2019 PAT 648, (2019) 3 PAT LJR 740
Author: Jyoti Saran
Bench: Jyoti Saran, Arvind Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2866 of 2019
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Mahadev Carrier Pvt. Ltd., a company incorporated under the Companies
Act,1956, having its registered office at 1/34 New Patliputra Colony, P.S
Patliputra, District Patna-13 through its Director Shri Ravi Kumar , male aged
about 43 years, S/o Late Chhedi Lal,resident of 1/34, New Patliputra Colony,
P.S. Patliputra, District Patna-13
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration, Excise and
Prohibition, Government of Bihar, Patna.
2. The Excise Commissioner, Bihar, Patna.
3. The District Magistrate, Jamui.
4. The Superintendent of Police, Jamui.
5. The Station House officer, Chandramandi Police Station, Jamui.
6. The State of Jharkhand through the Principal Secretary, Department of
Excise, Ranchi.
7. The Jharkhand State Beverage Corporation Limited, UTPAD Bhawan,
Kanke Road, Ranchi.
8. Carlsberg India Private Limited, Tupudana Namkum Road, Tupudana,
Ranchi, through its Manager.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Satyabir Bharti. Adv.
For the Respondent-State : Mr. Vivek Prasad, GP-7
For Respondent Nos.6 & 7 : Mr. Arup Kumar Chongdar, Adv.
For the Respondent No.8 : Mr. Gyan Shankar, Adv.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE JYOTI SARAN)
Date : 01-04-2019
The petitioner prays for issuance of a writ in the
nature of mandamus directing the respondent authorities in the
Registration, Excise and Prohibition Department of the
Government of Bihar (hereinafter referred to as the 'Excise
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Department') to forthwith release the truck bearing
Registration No.BR 01 GD 5138 along with 500 cases of
Tuborg Supreme Strong Premium Beer packed in bottles of
650 ml/500 ml, owned and manufactured by M/s Carlsberg
India Private Limited seized by the Station House Officer,
Chandramandi Police Station in the district of Jamui and
retained in custody by the 'Excise Department' of the
Government of Bihar in connection with Chandramandi P.S.
Case No.93 of 2018 registered for the offences punishable
under section 30(a) of the Bihar Prohibition and Excise Act,
2016 (hereinafter referred to as 'the Act').
The petitioner also prays for an appropriate
direction restraining the statutory authorities under 'the Act'
from initiating any proceeding for confiscation or destruction
of the consignment in question which, according to the
petitioner, was being lawfully transported from the licenced
Warehouse at Ranchi to the Jharkhand State Beverages
Corporation Warehouse at Deoghar.
Facts of the case lie in a very narrow compass and
as placed on record by Mr. Satyabir Bharti, learned counsel
appearing for the petitioner, the petitioner is a Transporter and
has a valid permit for providing transportation service to its
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client throughout the territory of this country.
It is submitted that it is under one such
arrangement that the petitioner undertook to transport 250
cases of Tuborg Supreme Strong Premium Beer packed in
bottles of 650 ml each and 250 cases of Tuborg Supreme
Strong Premium Beer packed in bottles of 500 ml each
through its vehicle bearing Registration No. BR 01 GD 5138
from 19C Warehouse of M/s Carlsberg India Private Limited
situated at Tupudana, Namkum Road, Ranchi to the
Warehouse of the Jharkhand State Beverages Corporation
Limited, Deoghar on the strength of statutory excise
permits/pass and transport documents.
It is the grievance of the petitioner as espoused
through by Mr. Bharti that it is during this course of
transportation of the consignment that the driver of the vehicle
mistakenly entered into the jurisdiction of the State of Bihar
barely few kilometers of its destination when it was seized by
the Respondent no.5, Station House Officer, Chandramandi
Police Station, Jamui along with assisting Constables, inter
alia, on the allegation that the goods in question were being
transported in violation of the provisions of section 30(a) of
'the Act', and an FIR was instituted.
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According to Mr. Bharti, despite all explanation
given by the driver of the vehicle and despite production of
the documents, the respondent no.5 and his Constables were
not willing to relent and allow the truck to return to its course
to reach its destination at Deoghar rather they caused seizure
of the truck and took the driver into custody after registering
Chandramandi P.S. Case No.93 of 2018 for alleged violation
of the provisions of section 30(a) of 'the Act'.
Mr. Bharti has placed on record the GPS Data vide
Annexure 4 to the supplementary affidavit to demonstrate the
movement of the truck which all along travelled within the
territory of the State of Jharkhand but barely few kilometers
of its destination at Deoghar that it crossed over to the
territory of the State of Bihar in the district of Jamui when the
police officials intercepted the truck, took it into custody and
registered a police case.
Learned counsel appearing for the petitioner in
reference to Annexure 2 series to the writ petition submits that
the Dispatch Note is dated 24.12.2018 and confirms the name
of the driver, the date of dispatch, the validity of the dispatch
note, the details of the goods, the truck number as well as its
destination at Deoghar depot. He submits that this dispatch
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note is issued under the authority of the Jharkhand State
Beverages Corporation Limited and attaches all details which
confirms to a valid lawful transportation of the goods in
question.
Learned counsel next refers to the Tax
Invoice/VAT Invoice cum Bill of Supply at running page 27,
the transport pass at running page 28 and the consignment
note issued by the petitioner, all dated 24.12.2018 and forming
part of Annexure 2 series to support the contention of the
petitioner that the goods were being lawfully transported and
were meant for supply within the State of Jharkhand in which
State there was no prohibition of law in force. He submits that
the truck was seized at 1.20 PM barely few moments before
the truck could reach its destination.
Learned counsel in reference to the FIR at
Annexure 3 submits that the Officer Incharge admits that the
driver informed him that the goods were being taken from
Ranchi to Deoghar but such disclosure was rejected simply on
grounds that the Prohibition Law was in force in the State of
Bihar and which prohibits transportation of liquor.
Placing the FIR Mr. Bharti contends that even
when the driver explained about the lawful transportation of
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the liquor with supporting documents, yet the vehicle was
seized and the counter affidavit so filed in the case on behalf
of the Dy. Superintendent of Police, Jamui though admits at
paragraph 7 that on 27.12.2018 someone came to support the
transportation with permits along with necessary papers yet
simply hiding behind the provisions of 'the Act' that the
respondents have refused to release the vehicle.
It is the submission of Mr. Bharti that it is in gross
abuse of powers that the truck of the petitioner has been
seized and even if any mistake was committed by the driver of
the truck to cross over to the territory of the State of Bihar, the
moment it transpired from the documents, that the goods were
being lawfully transported, the respondent Jamui District
Police and the 'Excise Department' should have shown
prudence to release it immediately rather than harassing the
petitioner for keeping the goods in seized condition for more
than three months.
The arguments of Mr. Bharti have been contested
by Mr. Vivek Prasad, learned Government Pleader No.7 who
simply hides behind the provisions of section 30(a) of 'the
Act' to defend the illegal action. Mr. Vivek Prasad in an
attempt to improve the defence has referred to the stand of the
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Dy. Superintendent of Police who was not even present when
the alleged seizure took place, to submit that since the driver
did not produce valid permit that the seizure took place and
even though papers had been produced on 27.12.2018 but by
then the police case had already been registered. This is all the
defence that is put up by Mr. Vivek Prasad in support of the
impugned action.
A pointed query as to what the State in its Excise
Department did to verify the stand of the petitioner of the
lawful transportation of the goods since after production of the
valid permit by the person on 27.12.2018 as admitted at
paragraph 7 of the counter affidavit filed on behalf of the Dy.
Superintendent of Police, Jamui, an explanation is given that
since the matter is under investigation hence the respondents
did not think it proper to proceed thereafter.
Learned counsel has referred to section 14 of 'the
Act' to submit that movement of intoxicants without a valid
permit or permission is illegal and thus the petitioner should
have taken permission from the competent authority before he
crossed over to the State of Bihar.
Mr. Gyan Shankar, learned counsel has appeared
for the consigner M/s Carlsberg India Private Limited to
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support the transportation under valid documents and in
reference to the stand taken in paragraph 3 of the counter
affidavit filed on behalf of the said Company it is submitted
that the entire set of document was in possession of the driver
with appropriate endorsement by the Jharkhand State
Beverages Corporation Limited but was not believed by the
Jamui Police to cause the illegal seizure.
The State of Jharkhand and the Jharkhand State
Beverages Corporation Limited have also registered
appearance through Mr. Arup Kumar Chongdar and though
they have not chosen to file any counter affidavit but speaking
through their counsel it is informed that the consignment was
being transported under the valid documents and there is
neither any doubt on the genuineness of the document or on
the lawfulness of the goods transported.
We have heard learned counsel for the parties and
we have perused the records.
Though a counter affidavit is filed on behalf of the
respondent no.4 i.e. the Superintendent of Police, Jamui which
barely runs into 10 paragraphs and purports to justify the
impugned action under the cover of non-production of travel
documents which stand is not supported from the recital of the
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FIR, the Excise Department has not chosen to file any counter
affidavit to defend the impugned action.
The impugned seizure has been carried out in
purported exercise of powers so vested in the law enforcing
agencies within the State of Bihar under the provisions of 'the
Act' which under section 14 of 'the Act' restricts movement of
intoxicants except under a valid permit or after obtaining
transit permission and in section 30(a) imposes a penalty for
any such unlawful import, export, transport, manufacture,
possession, sale of intoxicants or liquor etc.
Though heavy reliance was placed by Mr. Vivek
Prasad, learned Government Pleader No.7 on the provisions of
section 14 of 'the Act' to defend the impugned action and to
submit that the movement of any intoxicants can only be
through a valid permit or under transit permission obtained
from the prescribed authority, to a query made by the Court as
to whether 'the Act' provides for any statutory permit or
whether the Rules as mandated under section 14(4) have yet
been framed by the State Government, Mr. Prasad has no
answer because though 'the Act' was brought into force with
effect from 02.10.2016 yet the statutory rules have yet not
been framed.
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On a pointed query to Mr. Prasad as to what ought
to be the proper course for the law enforcing agencies in the
State of Bihar in case a transporter, in course of transportation
of liquor on strength of valid travel documents, within the
territory of a State where no Prohibition Law is in force like in
the present case the State of Jharkhand, mistakenly treads over
the territory of the State of Bihar where the Prohibition Law is
in force and the vehicle driver is possessed with documents to
support a lawful transportation of the goods, whether the
authorities of the State of Bihar should have assisted to put the
vehicle back to its normal course i.e. to return to the State of
Jharkhand and/or to direct the driver to obtain permission
from the competent authority or should have hurriedly
proceeded for seizure, as done in the present case, no
satisfactory answer could come forth.
In our opinion, the documents at Annexure 2 series
are sufficient indication of a valid transportation of goods
under the dispatch note issued by the Jharkhand State
Beverages Corporation Limited from Ranchi to Deoghar,
within the State of Jharkhand. The GPS tracking data at
Annexure 4 very clearly confirms that the vehicle all along
travelled within the State of Jharkhand and just before
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reaching Deoghar that it must have mistakenly crossed over to
Chandramandi in the district of Jamui within the State of
Bihar and having realised the mistake the driver tried to return
to the State of Jharkhand when the police authorities
intercepted the vehicle and took it into their custody.
While the FIR at Annexure 3 very fairly
acknowledges that the driver of the vehicle did inform the
Station House Officer that the goods were being transported
from Ranchi to Deoghar, there is no such mention in the FIR,
either that the goods were being transported without valid
documents or that the driver failed to produce the same. In
fact, this lacuna is sought to be filled up through the counter
affidavit when the Dy. Superintendent of Police, Jamui filing
the affidavit under the authority of the Superintendent of
Police, Jamui has tried to plug the loopholes to say that the
driver failed to produce the documents. This statement again
falls by the acknowledgment in paragraph 7 of the counter
affidavit where the deponent accepts that somebody came
with valid permit as regarding the transportation in question
on 27.12.2018. It reflects plain abuse of statutory power that
even when the respondents acknowledge that on 27.12.2018
some one produced the valid permits to support the
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transportation yet, neither the police authorities in the district
of Jamui nor the prescribed authority under 'the Act' bothered
to release the vehicle with the goods rather perpetuated the
illegality to keep the truck in illegal seizure and relegated the
driver of the vehicle to illegal custody.
Article 301 of the Constitution of India guarantees
freedom of trade, commerce and intercourse throughout the
territory of India. Though powers have been vested in the
Parliament under Article 302 to impose reasonable restrictions
and Article 304(b), inter alia, enables a Legislature of a State
by law, to impose such reasonable restrictions on the freedom
of trade, commerce or intercourse as may be required in
public interest but then such restrictions have to be subject to
the guarantee available under Article 301 of the Constitution
of India.
No doubt, with effect from the date, the
Prohibition Law was brought into force within the State of
Bihar, none was permitted to import, export, transport,
consume any intoxicant/liquor except under a valid permit but
the case in hand is not a case where the consignment in
question was being brought into the State of Bihar rather the
consignment started its course at Ranchi within the State of
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Jharkhand and was meant to be delivered at the Warehouse of
the Jharkhand State Beverages Corporation Limited, Deoghar
which again fell in the State of Jharkhand. There was thus no
occasion for the consigner to obtain any valid permit from the
excise authorities of the State of Bihar nor even if the truck
crossed over to the territory of Bihar, could the Excise
Department coerce the consigner to obtain a valid permit once
it got confirmed from the travelling documents that the
consignment was travelling under a statutory permit issued by
the Government Corporation in the State of Jharkhand and
was meant to be delivered at the Warehouse of the Jharkhand
State Beverages Corporation Limited, Deoghar. This position
is also admitted by Mr. Arup Kumar Chongar, learned counsel
representing the State of Jharkhand as well as the Jharkhand
State Beverages Corporation Limited.
This Court has on numerous occasions commented
upon the repeated abuse of the Prohibition Law by the
statutory authorities but the case in hand is a classic example
where neither the district police authorities of Jamui nor the
excise authorities are willing to relent and correct the mistake
committed even when valid documents supporting the
transportation has been brought to their notice and admitted
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at paragraph 7 of the counter affidavit. The respondent
authorities in the Excise and Prohibition Department,
Government of Bihar yet continue to stand by their illegal
action as canvased through their counsel Mr. Vivek Prasad.
In our opinion the provisions underlying section 14
of 'the Act', which obliges a transport carrier to obtain a valid
permit from excise authority, much relied upon by Mr. Prasad,
is unworkable because no Rules have yet been framed to
prescribe the procedure nor any form is prescribed to make
the provisions effective. In such situation, the reliance by Mr.
Prasad, learned Government Pleader No.7 on section 14 was
completely misplaced and does not come to the aid of the
respondents.
In our opinion, even if the State in its Police
Department and the 'Excise Department' have their reasons
for suspicion that it was a case of illegal transportation of
liquor within the territory of the State of Bihar, once the
Station House Officer admits that the driver of the vehicle had
informed that the consignment was being transported from
Ranchi to Deoghar and the Station House Officer,
Chandramandi Police Station, Jamui, does not record any
doubt in the statements so made while drawing the FIR, either
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he should have allowed the vehicle to return to the territory of
Jharkhand and/or even if, section 14 of 'the Act' was pressed
in service then, he should have allowed sufficient time to the
transporter or the consigner as the case may be, to obtain
permits for the cross over into the State of Bihar but the
district police did neither, rather mechanically proceeded to
seize the vehicle along with the goods to register a police case
and took the driver into custody.
We are satisfied to record that in view of the
documents present at Annexure 2 series read alongside the
G.P.S. tracking data present at Annexure 4, the authorities in
the 'Excise Department' in the State of Bihar as well as the
Jamui District Police should have exercised prudence rather
than to mechanically apply the Prohibition Law to seize the
goods which was being lawfully transported and which act is
in direct conflict with the Constitutional guarantee provided
under Article 301 of the Constitution of India and the
impugned action does not get saved by the provisions of
Article 304(b) in the attending circumstances.
Mr. Chongdar, learned counsel representing the
State of Jharkhand and the Jharkhand State Beverages
Corporation Limited has submitted on instruction that the
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goods were under a valid transportation and which was being
done with lawful documents. Though he admits to the delay in
translating such instruction into affidavit but confirms that the
goods were being lawfully transported.
We have also noted the submission of Mr. Gyan
Shankar, learned counsel appearing for the M/s Carlsberg
India Private Limited to submit that the driver was in
possession of complete set of travelling documents which left
no room for any suspicion either on the nature of the goods
transported or on the nature of transportation.
The hearing of the present case initiated on
14.02.2019and while allowing time to the concerned respondents to file their counter affidavit we expected a prudent response from the authorities in the 'Excise Department' and the Jamui Police who we thought, would correct their course but the stand of the respondent authorities in the 'Excise Department' and the Jamui Police confirms to an obstinate, mechanical and pedantic approach which belies prudence.
For the reasons and discussions above we allow this writ petition and direct the designated court below at Jamui (in case no confiscation proceeding has yet started) Patna High Court CWJC No.2866 of 2019 dt.01-04-2019 17/17 and/or the District Magistrate, Jamui who is the prescribed authority under 'the Act' (in case confiscation proceedings have been initiated) to ensure the release of the Truck bearing Registration No.BR 01 GD 5138 together with the goods i.e. 500 cases of Tuborg Supreme Strong Premium Beer packed in bottles of 650 ml/500 ml within a period of 72 hours of receipt/production of a copy of this judgment, failing which the petitioner would be entitled to damages at the rate of Rs.5,00,000/- (five lacs) per month payable by the Excise Department, Government of Bihar from the date the alleged illegal seizure was carried out until the vehicle together with the goods are released.
Let a writ of mandamus issue accordingly to the authorities in the 'Excise Department' as well as the Jamui District Police.
(Jyoti Saran, J) ( Arvind Srivastava, J) skpathak/-
AFR/NAFR AFR CAV DATE NA Uploading Date 02.04.2019 Transmission Date NA