Patna High Court - Orders
Viran Yadav, vs The State Of Bihar on 14 October, 2019
Author: Rakesh Kumar
Bench: Rakesh Kumar, Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14054 of 2019
======================================================
Viran Yadav, aged about 52 years, Gender-Male, Son of Late Kameshwar
Yadav, resident of Village- Tenduwa, Police Station- Nararikala, Khurd,
District- Aurangabad.
... ... Petitioner
Versus
1. The State of Bihar through the Secretary, Department of Excise, New
Secretariat, Patna.
2. The Excise Commissioner, Bihar, Patna.
3. The Collector, Aurangabad.
4. The Excise Officer, Aurangabad.
5. The Superintendent of Police, Aurangabad.
6. The Officer-In-charge, Prohibiiton and Excise, Aerka Check Post, Kutumba,
Aurangabad.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Narendra Kumar, Adv.
Mr.Tej Narayan Singh, Adv.
For the Respondent/s : Mr.AC to GP-7
======================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
2 14-10-2019Heard Sri Narendra Kumar, learned counsel, assisted by Sri Tej Narayan Singh, learned counsel for the petitioner and learned AC to Govt. Pleader no.7.
The present writ petition was filed on 11.07.2019 after serving copy of the same in the office of learned Advocate General, Bihar on 08.07.2019, however till date no counter affidavit has been filed. The petitioner, claiming to be registered Patna High Court CWJC No.14054 of 2019(2) dt.14-10-2019 2/4 owner of a two wheeler i.e. Pulsar Bajaj motorcycle, bearing Registration No. BR-26Q-0650, Chassis No. MD2A11CY8JRD29371, Engine No. DHYRJD03523, has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India, with a prayer to direct the respondents to release his motorcycle, which has been seized in connection with Ex. Case No.1165 of 2018, registered for offence under Section 30(a) of the Bihar Prohibition and Excise Act, 2016.
It was submitted by learned counsel for the petitioner that despite the fact that there was no recovery, motorcycle of the petitioner was seized on an allegation, as if, motorcycle with about 20 liters of country made liquor was found abandoned. A plea has been taken by learned counsel for the petitioner that after interception, the petitioner had gone to bring paper relating to the motorcycle, however, in the meanwhile, a false case was instituted. Learned counsel for the petitioner has drawn our attention to the statement made in paragraph-5 of the petition to show that after seizure, the motorcycle of the petitioner is lying in the open sky in the campus of Excise Department. He submits that the petitioner has already been granted bail on 19.01.2019 by order of the learned Addl. Sessions Judge-VII-cum- Special Judge, Excise, Aurangabad. It has been argued that if Patna High Court CWJC No.14054 of 2019(2) dt.14-10-2019 3/4 immediate order for release of the motorcycle is not passed, there is every possibility of irreparable damage of the same. Accordingly, a prayer has been made for directing the respondents to release the motorcycle of the petitioner.
Learned State Counsel, even in absence of counter affidavit, has opposed the prayer for release of the vehicle. However, he has not disputed the fact that virus of entire Bihar Excise Act is pending before the Hon'ble Supreme Court vide S.L.P. (C) 29749-29763 of 2016, which fact has been noticed by a Full Bench of this Court in a case, reported in 2019 (2) PLJR 1089; Ram Vinay Yadav Vs. State of Bihar.
Be that as it may, considering the fact that virus of entire Bihar Excise Act is pending before the Hon'ble Supreme Court, it would not be prudent for us to finally decide the present writ petition. At the same time, it would also not be advisable to allow the vehicle to be damaged in an uncared condition in the custody of the respondents. Accordingly, as an interim measure, during pendency of the present writ petition, it would be desirable to direct the respondents to provisionally release the vehicle in question.
Accordingly, the respondents are directed to provisionally release Pulsar Bajaj motorcycle, bearing Patna High Court CWJC No.14054 of 2019(2) dt.14-10-2019 4/4 Registration No. BR-26Q-0650, Chassis No. MD2A11CY8JRD29371, Engine No. DHYRJD03523, in favour of the petitioner on production of original documents relating to the vehicle in question with an undertaking that during pendency of the writ petition, the petitioner shall not alienate or create third party right in respect of the vehicle in question. Before releasing the vehicle, the respondents may be satisfied with the adequate security to be furnished by the petitioner, however it is made clear that the authority concerned shall not insist either for cash or bank guarantee. All the formalities must be completed within two weeks from the date of receipt/production of a copy of this order.
List this writ petition after disposal of S.L.P. (C) No.29749-29763 of 2016, pending before the Hon'ble Supreme Court.
(Rakesh Kumar, J.) ( Prakash Chandra Jaiswal, J.) nawalkrs/-
U