Patna High Court
Kundan Kumar Mishra vs The State Of Bihar on 21 September, 2020
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7839 of 2020
======================================================
Kundan Kumar Mishra, Age about - 24 Years, Gender - Male, Son of
Shatrudhan Mishra, Resident of J.M.N. - 107, Bank Mains Colony, P.O. and
P.S. - Hajipur, District - Vaishali.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Excise Department, Government of Bihar, Patna.
3. The District Magistrate cum Collector, Patna.
4. The Superintendent of Police, Patna.
5. The Excise Superintendent Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jagjit Roshan, Advocate
Mr. Om Prakash Singh, Advocate
For the Respondent/s : Mr. Vikash Kumar, SC-11.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 21-09-2020
Heard learned counsel for the petitioner and
learned counsel for the State.
Petitioner has prayed for the following reliefs: -
"(i) Issuance of an appropriate writ or writs in the
nature of Mandamus directing the
Respondents to release the Vehicle Yamaha
FZS FR & RR Disc (India) bearing
Registration No. BR-31-AG-5406 of the
Petitioner and hand over the possession to the
Petitioner which has been seized in connection
with P.R. No. 254 of 2019 / Special Case No. -
9350 of 2019 under Section 30 (a) and 56 (b)
of Bihar Prohibition and Excise Act, 2016
pending in the court of learned Special Judge,
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Excise, Patna.
(ii) Issuance of writ or writs, order/orders,
direction/directions directing the respondents
to stay the Confiscation Case if initiated and
pending before the Respondent no. - 3 till the
final adjudication of this case.
(iii) Grant such other order/orders, relief/reliefs as
your Lordships may deem fit and proper."
Learned counsel for the petitioner prays that the
petition be disposed of in terms of order dated 9 th January,
2020 passed in CWJC No. 20598 of 2019 titled as Md.
Shaukat Ali Vs. The State of Bihar and subsequent order
dated 14th January, 2020 passed in CWJC No.17165 of 2019
titled as Umesh Sah Versus the State of Bihar & Ors. and
order dated 29.01.2020 passed in CWJC No.2050 of 2020
titled as Bunilal Sah @ Munilal Sah.
Learned counsel for the respondents has no
objection to the same.
The Bihar Prohibition and Excise Act, 2016
(hereinafter referred to as the Act) prohibits the manufacture,
storage, distribution, transportation, possession, sale,
purchase and consumption of any intoxicant or liquor, unless
so allowed in terms of the Act. (Section 13).
In addition to the penalty imposed for
committing such an offence, Section 56 of the Act lays down
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the procedure for confiscation of "things" used for in the
commission of such an offence. The said Section reads as
under:
"56. Things liable for confiscation.-
Whenever an offence has been committed,
which is punishable under this Act, following
things shall be liable to confiscation, namely-
(a) Any intoxicant, liquor, material, still,
utensil, implement, apparatus in respect of or
by means of which such offence has been
committed;
(b) any intoxicant or liquor unlawfully
imported, transported, manufactured, sold or
brought along with or in addition to, any
intoxicant, liable to confiscation under clause
(a);
(c) any receptacle, package, or covering in
which anything liable to confiscation under
clause (a) or clause (b), is found, and the
other contents, if any, of such receptacle,
package or covering;
(d) any animal, vehicle, vessel or other
conveyance used for carrying the same.
(e) Any premises or part thereof that may
have been used for storing or manufacturing
any liquor or intoxicant or for committing any
other offence under this Act.
Explanation.- The word "premises" include
the immovable structure, all moveable items
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within the structure and the land on which the
premises is situated."
Under section 58 power to issue an order of
confiscation vests with the District Collector/Authorized
officer, who upon receipt of the report of the seizing officer
detaining such property ("things") is required to pass an
order.
This Court has been flooded with several
petitions solely on account of non-initiation of such
proceedings of confiscation or passing of illegal orders with
respect thereto. Also, on account of lack of parties pursing
the remedies so provided under the Act.
Consequently, the court was faced with the
following fact situations:- (a) where despite seizure, no
proceedings for confiscation under Section 58 were initiated;
(ii) where such proceedings were initiated but not concluded
within a reasonable time; (c) the parties after obtaining
interim relief for release of "things" under orders passed in
different set of writ petitions, did not participate in the
confiscatory proceedings; (d) where the order of confiscation
was neither communicated nor the parties made aware of
such fact, thus precluding them from filing appeal under
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Section 92 and Revision under Section 93 of the Act; (e)
proceedings initiated under Section 92/93 were not
concluded within a reasonable time either on account of
inaction on the part of the authority(s) or on account of non-
cooperation of the private parties, be it for whatever reason.
Resultantly, this Court from time to time has
been passing several orders.
In CWJC No.3245 of 2017 titled as Manish
Kumar Chaudhary versus the State of Bihar & Ors., this
Court vide order dated 18.01.20202 issued following
directions:
"As such, as mutually prayed for,
the present writ petition is being disposed of on
the following mutually agreed terms:-
(a) Interim order dated 07.03.2017 passed in
the instant writ petition, directing release
of the property (vehicle/land/house/shop
etc.) shall continue to remain in operation
till such time proceedings up to the stage
of initiation of confiscatory proceedings
and its culmination as also filing and
culmination of the proceedings in the
appeal, as the case may be. This,
however, would be subject to the
petitioner(s) fully cooperating and not
transferring/alienating the property to any
person or creating third party rights. It
goes without saying that the property
shall be maintained and retained in its
original condition and not destroyed in
any manner or its character changed.
(b) Wherever proceedings for confiscation have
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not started, the Appropriate Authority
constituted under the Act, shall positively
initiate the same within a period of four
weeks from today. In any event, petitioner
undertakes to appear in the office of the
concerned appropriate authority/the
concerned District Magistrate, on the 10th
of February, 2020 and apprise him of the
passing of the order. The said Officer
shall forthwith, and not later than four
weeks from today, initiate the
proceedings and after compliance of
principles of natural justice, take a
decision thereupon within a period of two
months.
(c) In the event of the authority arriving at the
conclusion, directing confiscation of the
property, the petitioner shall positively
file the appeal within the statutory period
as envisaged under Section 92 of the
Bihar Prohibition and Excise Act, 2016
and the appellate authority shall
positively decide the same within a period
of two months thereafter.
(d) Wherever confiscatory proceedings already
stand concluded and if the petitioner so
desires, within four weeks from today or
within the statutory period of limitation,
as the case may be, positively file an
appeal, which shall be adjudicated on its
own merit. The issue of limitation shall
not be raised by the State or come in the
petitioner's way of decision on merits.
The said proceedings shall positively be
concluded within a period of two months
from the date of filing.
(e) Petitioner undertakes to fully cooperate in
all such proceedings (confiscatory,
Appeal, etc.) and shall not take any
unnecessary adjournment.
(f) Where appeal already stands filed,
petitioner shall appear before the said
Authority on the 20th February, 2020 and
apprise him of the passing of the order.
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The Appellate Authority shall positively
decide the same within a period of two
months thereafter.
(g) With the decision in the appeal, it shall be
open for either of the parties to take
recourse to such remedies as are available
in accordance with law, including
approaching this Court, on the same and
subsequent cause of action.
(h) If the petitioner fails to cooperate, does not
join, or makes an endeavour of
procrastination, in any one of the
proceedings referred to supra, it shall be
open for the authority to take a decision
with regard to the property
(vehicle/house/land etc.), including taking
back possession and putting it on sale in
terms of the Act, with the interim order
deemed to have been vacated.
(i) If the appellant chooses not to prefer an
appeal within the said statutory period or
as directed herein, it shall be open for the
authority to take a decision with regard to
the property, including taking back
possession and putting it on sale in terms
of the Act and the interim order passed in
the instant petition shall be deemed to
have been vacated.
(j) With the outcome of the Special Leave
Petition (C) No.29749 of 2016, titled as
State of Bihar & Ors. etc. Vs.
Confederation of Indian Alcoholic
Beverage Companies & Anr., parties,
including the petitioner would be at
liberty to take recourse to such remedies
as are permissible in law."
In CWJC No.20598 of 2019 titled as Md.
Shaukat Ali Vs. The State of Bihar & Ors. this Court vide
order dated 09.01.2020 issued the following directions: -
"Without adjudicating the petitioner's
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petition on merits, we are of the considered view that
interest of justice would be best met, if the petition is
disposed of in the following terms:-
(a) Since the vehicle in question stands
seized in relation to the FIR which stood registered
long ago, in case confiscation proceeding has not
been initiated, it must be initiated within a period of
15 days from today and that confiscation
proceeding stands initiated, we direct the
appropriate authority under the Act to forthwith
ensure that such proceedings be concluded not later
than 30 days.
(b) The petitioner undertakes to make
himself available in the office of the concerned
appropriate authority empowered under Section 58
of the Act i.e. District Collector, in his/her office on
24.01.2020at 10:30 A.M.
(c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason, such proceeding cannot be concluded, in that event it shall be open for the authority to take such measures, as are permissible in law, for release of the vehicle in question by way of interim measure, on such terms as may be deemed appropriate, considering the attending facts and circumstances of the case.
(d) If eventually, the appropriate authority arrives at a conclusion that the property is not liable to be confiscated, it shall be open for the petitioner to seek damages in accordance with law and have appropriate proceedings initiated against the erring officials/officers.
Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed.
For future guidance, where parties have not approached this Court, we issue the following direction:-
The expression "reasonable delay" used in Section 58 of Chapter VI of the Act, in our considered view, necessarily has to be within a reasonable time and with dispatch, which period, in our considered view, three months time is sufficient enough for any authority to adjudicate any issue, Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 9/25 more so, when we are dealing with confiscatory proceedings."
These directions were reiterated in CWJC No.17165 of 2019 titled as Umesh Sah Versus The State of Bihar & Ors. by this Court vide order dated 14.01.2020.
Since the respondents had failed to comply with the several orders passed by this court, in CWJC No.2050 of 2020 titled as Bunilal Sah @ Munilal Sah versus the State of Bihar & Ors. vide order dated 29.01.2020 by recording the entire history, directed the State to file an affidavit as to why proceedings for contempt be not initiated. Such order dated 29.01.2020 in toto reads as under:-
"It is seen that despite our order dated 9 thof January, 2020, passed in C.W.J.C. No. 20598 of 2019, titled as Md. Shaukat Ali Vs. The State of Bihar& Ors., and the order dated 14thof January, 2020 passed in C.W.J.C. No. 17165 of 2019, titled as Umesh Sah Vs. The State of Bihar& Ors., the State has not initiated proceedings under the provisions of the Bihar Prohibition and Excise Act, 2016. It is a matter of record that this legislation has generated huge litigation. The docket of the Court, be it the trial court or the High Court, is now choked solely on account of such legislation. In the High Court itself, on an average, 400 bail applications are being filed every day, some of which are pertaining to the said Statute. Position in the lower courts is worse. Before the trial courts, i.e. the Sessions Courts, more than 1,75,000 challans stand filed in relation to the said Statute. Before this Court, on an average, more than 5000 writ petitions are being filed annually for release of vehicles/properties seized under the said Act. It has Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 10/25 been the continued practice of this Court, since the year 2017, that in the writ petitions the vehicles, unless the situation so warrants, are normally being released subject to fulfilment of certain conditions. This, perhaps, is done only to protect the property from being destroyed, for there is no mechanism under the Statute or with the administration for protecting the property seized in relation to the crime registered under the said Statute. Property is left to the vagaries of weather, resulting into national loss. This we say for the reason that proceedings for confiscation, as envisaged under Section 58, were never initiated by the authority, which under the Act is the District Magistrate/Collector. It is only as a result of inaction on the part of such authorities that the owners of the vehicles/properties are constrained to approach this Court for its release. When the matter in C.W.J.C. No. 20598 of 2019 (Md. Shaukat Ali Vs. The State of Bihar& Ors.) and in 17165 of 2019(Umesh Sah Vs. The State of Bihar& Ors.) (supra) was taken up for hearing, the State vehemently opposed the release of the vehicle and, as such, the following orders were passed:
(in C.W.J.C. No.20598 of 2019, order dated 9.1.2020) "The petition filed on 01.10.2019 is listed for hearing for the first time today before the Court.
Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State.
With the consent of the learned counsel for the parties, the writ petition stands disposed of in the following terms.
The petitioner prays for provisional release of Tata Indigo white vehicle bearing Registration No. BR 01CX 1796 which has been seized in connection with Kotwali P. S. Case No. 721 of 2019, for the offences punishable under Sections 427/279 of the Indian Penal Code and Section 37(b)(c) of the Bihar Prohibition and Excise Act, 2016.
It is continued practice of this Court that in cases of drunken driving; no recovery from the vehicle; recovery of less than commercial quantity; where ex-facie, vehicle is not liable to be confiscated; where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc., this Court has been directing the State to provisionally release vehicle/property, subject to Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 11/25 initiation/conclusion/finalisation of the confiscatory proceedings, as the case may be. Reference can be made to the judgments/ orders passed by different co- ordinate Benches of this Court, viz:-
(i) Judgement dated 22.03.2018 passed in CWJC No.5049 of 2018, titled as Diwakar Kumar Singh versus The State of Bihar & Ors.;
(ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar & Ors.;
(iii) order dated 31.07.2018 passed in CWJC No.14242 of 2018 titled as Amar Kumar Vs. The State of Bihar & Ors.;
(iv) order dated 12.02.2018 passed in CWJC No.2437 of 2018 titled as Mahendra Manjhi Vs. The State of Bihar & Ors.;
(v) judgement dated 12.02.2018 passed in CWJC No.2470 of 2018 titled as Laxman Das @ Lakshman Ravidas Vs. The State of Bihar & Ors.;
(vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Versus The State of Bihar & Ors.;
(vii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Vs. The State of Bihar & Ors.;
(viii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors.;
(ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors.;
(x) order dated 01.05.2018 passed in CWJC No.7644 of 2018 titled as Suraj Ram Versus The State of Bihar & Ors.;
(xi) order dated 07.08.2018 passed in CWJC No.15435 of 2018 titled as Kalesar Chaudhari Versus the State of Bihar & Ors.;
(xii) judgement dated 18.01.2019 passed in CWJC No.1215 of 2019 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors.;
(xiii) judgement dated 29.01.2019 passed in CWJC No.1620 of 2019 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar & Ors.;
Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 12/25
(xiv) judgement dated 08.02.2019 passed in CWJC No.2380 of 2019 titled as Avinash Kumar Versus the State of Bihar & Ors.;
(xv) judgement dated 29.01.2019 passed in CWJC No.1648 of 2019 titled as Roshan Kumar Versus The State of Bihar & Ors.; and (xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors.
In fact, in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors. the Court issued the following directions:-
"That apart, in the confiscation proceedings, the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act, 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor, whether the provision of Section 56 of the Act will apply. It shall be mandatory for the confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act, apply his mind and pass a speaking order with regard to confiscation initiated. Without deciding the aforesaid issue as a preliminary issue, further proceedings in the confiscation proceedings shall be prohibited.
We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar, who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 13/25 possession of the vehicle.
It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof, if we find that the District Magistrates are passing confiscation order without addressing this issue first, we may consider initiating contempt proceedings against the concerned District Magistrate."
It is further seen that in CWJC No.15003 of 2019 titled as Shobha Devi Versus The State of Bihar & Ors. the Court observed as under:-
"6. On examination of aforesaid fact, particularly allegation of the petitioner that in a court proceeding before the learned Special Judge, Excise, a false information was given, we are of the opinion that the court of learned Special Judge, Excise would be competent court to pass an appropriate order, in view of provisions contained in Section 340 of the Code of Criminal Procedure, 1973.
7. Accordingly, the petitioner is granted liberty to file appropriate petition before the learned Special Judge, Excise for prosecuting the concerned police official.
8. So far as claim of compensation is concerned, obviously on going through the material on record, since there was no recovery of liquor from the vehicle and it was a case, in which, the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance, though were liable to be arrested. In any event, the vehicle was not required to be seized, since it was not liable to be confiscated.
9. In such situation, we are of the opinion that it is a fit case, in which, we may direct to pay adequate compensation to the petitioner, being owner of the vehicle, to the tune of Rs.75,000/- (seventy five thousand), however, Sri Kumar Manish, learned Standing Counsel - 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish, S.C.- 5 is allowed for filing counter affidavit so that final order may be passed.
10. It goes without saying that before Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 14/25 filing counter affidavit, the respondent no. 4/Superintendent of Police, Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer, who had seized the vehicle of the petitioner and state all those facts in its counter affidavit, which must be filed by 29th of November, 2019. The affidavit must be sworn by the Superintendent of Police himself.
11. It further goes without saying that if after considering all the facts, including counter affidavit, which is proposed to be filed, the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation, which has been referred hereinabove, the said compensation amount must be recovered from the pocket of the police officer, who was responsible for such illegal seizure."
Despite the same, only before this Court, when matters of similar nature came up for hearing on 16thof December, 2019, the learned Advocate General assisted by Shri Vikash Kumar, learned Standing Counsel-11, and Shri Vivek Prasad, learned Government Pleader-7, vehemently opposed the petitions for release of the vehicles. Consequently, the writ petitions were disposed of with the directions to the appropriate authorities to positively initiate/conclude confiscatory proceedings within a period of 30-45 days.
Without adjudicating the petitioner's petition on merits, we are of the considered view that interest of justice would be best met, if the petition is disposed of in the following terms:-
(a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago, in case confiscation proceeding has not been initiated, it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated, we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days.
(b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector, in his/her office on 24.01.2020 at 10:30 A.M.
(c) We further direct the appropriate Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 15/25 authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason, such proceeding cannot be concluded, in that event it shall be open for the authority to take such measures, as are permissible in law, for release of the vehicle in question by way of interim measure, on such terms as may be deemed appropriate, considering the attending facts and circumstances of the case.
(d) If eventually, the appropriate authority arrives at a conclusion that the property is not liable to be confiscated, it shall be open for the petitioner to seek damages in accordance with law and have appropriate proceedings initiated against the erring officials/officers.
Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed.
For future guidance, where parties have not approached this Court, we issue the following direction:-
The expression "reasonable delay" used in Section 58 of Chapter VI of the Act, in our considered view, necessarily has to be within a reasonable time and with dispatch, which period, in our considered view, three months time is sufficient enough for any authority to adjudicate any issue, more so, when we are dealing with confiscatory proceedings.
We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved, it shall be open to them to initiate appropriate proceeding before the appellate authority.
Learned counsel for the State also undertakes to communicate the order to the concerned appropriate authority i.e. District Magistrate, empowered under Section 58 of the Act."
(In C.W.J.C. No.17165 of 2019, order dated 14.1.2020) "Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State.
Learned counsel for the petitioner invites Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 16/25 our attention to our earlier order dated 09.01.2020 passed in CWJC No. 20598 of 2019, titled as Md. Shaukat Ali Vs. The State of Bihar& Ors., and wants the petition to be disposed of in terms thereof.
With the consent of the learned counsel for the parties, the writ petition stands disposed of in the following terms.
The petitioner prays for provisional release of Pick Up Van (Tata Motor/SFC-407 D-Van) bearing Registration No. BR-06G-4211 which has been seized in connection with Taukauliya P.S.Case No. 709 of 2018 for the offences punishable under Sections 272, 273, 34 of the Indian Penal Code and Sections 30(a), 38(1), 41(1)of the Bihar Prohibition and Excise Act, 2016.
It is continued practice of this Court that in cases of drunken driving; no recovery from the vehicle; recovery of less than commercial quantity; where ex-facie, vehicle is not liable to be confiscated; where there is inordinate delay in initiating proceedings for confiscation of the vehicle etc., this Court has been directing the State to provisionally release vehicle/property, subject to initiation/conclusion/finalisation of the confiscatory proceedings, as the case may be. Reference can be made to the judgments/ orders passed by different co- ordinate Benches of this Court, viz:-
(i) Judgement dated 22.03.2018 passed in CWJC No.5049 of 2018, titled as Diwakar Kumar Singh versus The State of Bihar & Ors.;
(ii) order dated 31.07.2018 passed in CWJC No.13162 of 2018 titled as Rajesh Kumar Pandit @ Rajesh Pandit Vs. The State of Bihar & Ors.;
(iii) order dated 31.07.2018 passed in CWJC No.14242 of 2018 titled as Amar Kumar Vs. The State of Bihar & Ors.;
(iv) order dated 12.02.2018 passed in CWJC No.2437 of 2018 titled as Mahendra Manjhi Vs. The State of Bihar & Ors.;
(v) judgement dated 12.02.2018 passed in CWJC No.2470 of 2018 titled as Laxman Das @ Lakshman Ravidas Vs. The State of Bihar & Ors.;
(vi) order dated 11.09.2017 passed in CWJC No.13158 of 2017 titled as Sanjay Kumar Versus The State of Bihar & Ors.;
Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 17/25
(vii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Vs. The State of Bihar & Ors.;
(viii) order dated 27.03.2018 passed in CWJC No.5528 of 2018 titled as Bikash Kumar Versus The State of Bihar & Ors.;
(ix) order dated 01.05.2018 passed in CWJC No.7755 of 2018 titled as Anandi Prasad Versus The State of Bihar & Ors.;
(x) order dated 01.05.2018 passed in CWJC No.7644 of 2018 titled as Suraj Ram Versus The State of Bihar & Ors.;
(xi) order dated 07.08.2018 passed in CWJC No.15435 of 2018 titled as Kalesar Chaudhari Versus the State of Bihar & Ors.;
(xii) judgement dated 18.01.2019 passed in CWJC No.1215 of 2019 titled as Raushan Kumar @ Raushan Kumar Singh Versus The State of Bihar & Ors.;
(xiii) judgement dated 29.01.2019 passed in CWJC No.1620 of 2019 titled as Asharfi Kumar @ Rakesh Kumar Versus the State of Bihar & Ors.;
(xiv) judgement dated 08.02.2019 passed in CWJC No.2380 of 2019 titled as Avinash Kumar Versus the State of Bihar & Ors.;
(xv) judgement dated 29.01.2019 passed in CWJC No.1648 of 2019 titled as Roshan Kumar Versus The State of Bihar & Ors.; and (xvi) judgement dated 22.01.2019 passed in CWJC No.1314 of 2019 titled as Shanti Devi Versus The State of Bihar & Ors.
In fact, in CWJC No. 5049 of 2018 titled as Diwakar Kumar Singh Versus the State of Bihar & Ors. the Court issued the following directions:-
"That apart, in the confiscation proceedings, the confiscating authority shall take note of the provisions of Section 56 of the Bihar Prohibition and Excise Act, 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner is found or the vehicle is found to be used by a person in drunken condition and no liquor is seized from the vehicle or when the vehicle is not used for transportation of liquor, whether the provision of Section 56 of the Act will apply. It shall be mandatory for the Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 18/25 confiscating authority to decide this issue before passing any order on the confiscation proceedings. The confiscating authority shall consider the provision of Section 56 of the Act, apply his mind and pass a speaking order with regard to confiscation initiated. Without deciding the aforesaid issue as a preliminary issue, further proceedings in the confiscation proceedings shall be prohibited.
We further request the office of the Advocate General to communicate this order to all the District Magistrates in the State of Bihar, who would be mandated to pass an appropriate order in such cases where the vehicle has been confiscated under Section 56 of the Act only on the allegation that the vehicle was being driven in a drunken condition and no liquor was seized from the vehicle nor the vehicle used for transportation or carriage of liquor. The issue shall be decided by each and every District Magistrate before proceeding in the confiscation proceedings where the allegation is about the vehicle being driven in a drunken condition and no liquor was found from the possession of the vehicle.
It shall be the duty of the Advocate General to communicate this order to each and every District Magistrate and inform the Registrar General of this Court. In spite thereof, if we find that the District Magistrates are passing confiscation order without addressing this issue first, we may consider initiating contempt proceedings against the concerned District Magistrate."
It is further seen that in CWJC No.15003 of 2019 titled as Shobha Devi Versus The State of Bihar & Ors.the Court observed as under:-
"6. On examination of aforesaid fact, particularly allegation of the petitioner that in a court proceeding before the learned Special Judge, Excise, a false information was given, we are of the opinion that the court of learned Special Judge, Excise would be competent court to pass an appropriate order, in view of provisions contained in Section 340 of the Code of Criminal Procedure, 1973.
7. Accordingly, the petitioner is granted liberty to file appropriate petition before the learned Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 19/25 Special Judge, Excise for prosecuting the concerned police official.
8. So far as claim of compensation is concerned, obviously on going through the material on record, since there was no recovery of liquor from the vehicle and it was a case, in which, the occupants of the vehicle were alleged to be in drunken condition and were creating nuisance, though were liable to be arrested. In any event, the vehicle was not required to be seized, since it was not liable to be confiscated.
9. In such situation, we are of the opinion that it is a fit case, in which, we may direct to pay adequate compensation to the petitioner, being owner of the vehicle, to the tune of Rs.75,000/- (seventy five thousand), however, Sri Kumar Manish, learned Standing Counsel - 5 requests for granting an opportunity for obtaining detailed instruction and filing counter affidavit in the matter. The request of Sri Kumar Manish, S.C.- 5 is allowed for filing counter affidavit so that final order may be passed.
10. It goes without saying that before filing counter affidavit, the respondent no. 4/Superintendent of Police, Darbhanga may conduct a preliminary inquiry regarding the conduct of the police officer, who had seized the vehicle of the petitioner and state all those facts in its counter affidavit, which must be filed by 29th of November, 2019. The affidavit must be sworn by the Superintendent of Police himself.
11. It further goes without saying that if after considering all the facts, including counter affidavit, which is proposed to be filed, the Court comes to the conclusion that the petitioner is entitled for claim of amount of compensation, which has been referred hereinabove, the said compensation amount must be recovered from the pocket of the police officer, who was responsible for such illegal seizure."
Despite the same, only before this Court, when matters of similar nature came up for hearing on 16thof December, 2019, the learned Advocate General assisted by Shri Vikash Kumar, learned Standing Counsel-11, and Shri Vivek Prasad, learned Government Pleader-7, vehemently opposed the petitions for release of the vehicles. Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 20/25 Consequently, the writ petitions were disposed of with the directions to the appropriate authorities to positively initiate/conclude confiscatory proceedings within a period of 30-45 days.
Without adjudicating the petitioner's petition on merits, we are of the considered view that interest of justice would be best met, if the petition is disposed of in the following terms:-
(a) Since the vehicle in question stands seized in relation to the FIR which stood registered long ago, in case confiscation proceeding has not been initiated, it must be initiated within a period of 15 days from today and that confiscation proceeding stands initiated, we direct the appropriate authority under the Act to forthwith ensure that such proceedings be concluded not later than 30 days.
(b) The petitioner undertakes to make himself available in the office of the concerned appropriate authority empowered under Section 58 of the Act i.e. District Collector, in his/her office on 04.02.2020 at 10:30 A.M.
(c) We further direct the appropriate authority to positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner. If for whatever reason, such proceeding cannot be concluded, in that event it shall be open for the authority to take such measures, as are permissible in law, for release of the vehicle in question by way of interim measure, on such terms as may be deemed appropriate, considering the attending facts and circumstances of the case.
(d) If eventually, the appropriate authority arrives at a conclusion that the property is not liable to be confiscated, it shall be open for the petitioner to seek damages in accordance with law and have appropriate proceedings initiated against the erring officials/officers.
Learned counsel for the petitioner states that the certified copy of the order shall be made available to the concerned District Collector on the date so fixed.
For future guidance, where parties have not approached this Court, we issue the following direction:-
The expression "reasonable delay" used in Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 21/25 Section 58 of Chapter VI of the Act, in our considered view, necessarily has to be within a reasonable time and with dispatch, which period, in our considered view, three months time is sufficient enough for any authority to adjudicate any issue, more so, when we are dealing with confiscatory proceedings.
We clarify that we have not adjudicated the writ petition on merits and it shall be open for the parties to take all stand in the adjudicatory proceedings and wherever parties are aggrieved, it shall be open to them to initiate appropriate proceeding before the appellate authority.
Learned counsel for the State also undertakes to communicate the order to the concerned appropriate authority i.e. District Magistrate, empowered under Section 58 of the Act."
In Umesh Sah (supra), this Court had clarified that the expression "reasonable delay" under Section 58 of Chapter 6 of the Act has to be construed to be 'not more than three months'.
It is seen that despite our observations, the appropriate authorities have not taken any action in initiating the proceedings for confiscation of the property under the Act. The litigants are, thus, forced to approach this Court by way of filing separate petitions.
Thus, today we are left with two options; either to initiate proceedings for contempt under the provisions of Contempt of Courts Act or under Article 215 of the Constitution of India or ask the Chief Secretary, Government of Bihar, to evolve a mechanism, self serving in nature, so as to ensure that the provisions of the Act are implemented in letter and spirit, expeditiously, without any delay and with reasonable dispatch.
Why is it that the owners of the property are forced to approach this Court for release of the vehicles or property? Is it that there is no mechanism under the Act for initiating confiscatory proceedings at the earliest? Is it that there is insufficient infrastructure with the State Government for ensuring implementation of the provisions of the Act?
Illustratively, in the weekly list dated 27.1.2020, we notice that more than 75 cases stand filed and listed despite our order dated 9 thof January, 2020. In the instant case, seizure is of the year 2019 and no proceedings of confiscation have commenced. Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 22/25 We are of the considered view that non- implementation of the Act is generally having a very serious adverse consequence on the dispensation of administration of justice. And, peculiarly, it is only when the matter was taken up by the Bench hearing the petition bearing C.W.J.C. No. 25266 of 2019 (Vikki Kumar Vs. The State of Bihar& Ors.) on 17.12.2019that the State vehemently opposed release of the vehicle, contrary to the practice adopted hitherto before.
Be that as it may, at this point in time, we refrain from passing any order under the contempt jurisdiction, but direct the Chief Secretary, Government of Bihar, to file his personal affidavit dealing with each one of the issues highlighted (supra) as also elaborately indicating the mechanism which the State has or desires to evolve so as to prevent the litigants from directly approaching the Court for release of the vehicle and also ensuring early completion of the proceedings, be it confiscatory in nature or in an appellate jurisdiction, under the provisions of the Bihar Prohibition and Excise Act, 2016.
Let an affidavit in that regard be positively filed within one week.
List this case on 6.2.2020."
Further this very Bench in CWJC No.6148 of 2020, titled as Vishal Kumar Versus the State of Bihar & Anr on 04.06.2020 issued the following directions: -
"In the aforesaid decisions, we have already laid down the time-schedule within which all proceedings are necessarily required to be concluded and the outer limit is three months from the date on which this Court has directed the party to make himself available before the appropriate authority.
We clarify that petitioner undertakes to fully cooperate in the proceedings and we further clarify that in case the authorities are not able to conclude the proceedings within the time bound period, the vehicle/property shall be allowed to be released on such conditions as the Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 23/25 appropriate authority may deem fit and proper.
As such, petition is disposed of making the directions contained in the orders referred to supra, applicable mutatis mutandis, insofar as applicable and possible, to the petitioner's case."
Learned counsel states that petition be disposed of in terms of the various orders passed by this Court, more so the orders referred to supra.
It is seen that till date, in large number of cases, position about conclusion of the proceedings, be it under Section 58, 92 or 93 remains the same.
We further direct that all proceedings under Section 58 must positively be initiated/concluded within a period of ninety days from the date of appearance of the parties. Further, Appeal/Revision, if any, be also decided within a period of thirty days from the date of initiation, failing which the "things" (vehicle/property/ etc.) shall be deemed to have been released in terms of several orders passed by this Court, reference whereof stands mentioned in Bunilal Sah @ Munilal Sah (supra).
Wherever confiscatory proceedings stand concluded and parties could not file the appeal/revision within the statutory period of limitation, as already stands directed in several matters, if they were to initiate such Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 24/25 proceedings within next thirty days, the plea of limitation would not come in their way of adjudication of such proceedings on merit.
Petitioner through learned counsel undertakes to make himself/herself available on 07th October, 2020 at 10:30 A.M. before the appropriate authority which may be in the attending facts, the Collector of the Patna District/Appellate or the Revisional Authority. If the Collector is not himself dealing with the matter on account of delegation of power or assignment of work to another officer of his District, he shall fix a date directing the parties to appear before the said officer, which date shall be not exceeding one week. Also, he shall inform the said authority of fixing of such date. We clarify that convenience of parties, specially during the time of Pandemic Covid-19 is of prime importance and it shall be open for the authority to hear the parties with the use of technology, i.e. Video Conferencing facility etc. Learned counsel for the State undertakes to communicate the order to all concerned, including the District Magistrate and no certified copy of the order shall be required to be placed on the file of proceedings pending or Patna High Court CWJC No.7839 of 2020 dt.21-09-2020 25/25 initiated under the Act, for such order is available on the official website of the High Court & can be downloaded and/or verified from there, in the times of current Pandemic Covid-19.
We only hope and expect that the Authorities under the Act shall take appropriate action at the earliest and in accordance with law, within the time schedule fixed, failing which the vehicle/property/things liable for confiscation shall be deemed to have been released without any further reference to this Court.
Liberty reserved to the petitioner to take recourse to such remedies as are otherwise available in accordance with law if the need so arises subsequently.
Petition stands disposed of with the aforesaid observations/directions.
(Sanjay Karol, CJ) ( S. Kumar, J) B.Kr./-
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