Patna High Court
Md. Asgar Ali vs The State Of Bihar on 13 January, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh, Anil Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.304 of 2020
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Md. Asgar Ali Son of Sikander Khalipha, Resident of Mohalla-Dhibra, Ward
No. 4, Bikramganj, P.S.-Bikramganj, District-Rohtas, PIN-802212, (Bihar).
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Excise and Prohibition,
Government of Bihar, Patna.
2. The Director General of Police, Government of Bihar, Patna.
3. The District Magistrate-Cum-Collector, Rohtas, District-Rohtas (Sasaram)
4. The Station House Officer, Bikramganj Police Station, District-Rohtas
(Sasaram).
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Shakib Ayaz
For the Respondent/s : Mr.Vivek Prasad (Gp7)
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
and
HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH) Date : 13-01-2020 Heard learned counsel for the petitioner and learned counsel for the respondents.
The present writ application has been filed for release of Mahindra Bolero Jeep bearing Registration No.BR-26E-2361, in favour of petitioner, which has been seized in connection with Bikramganj P.S. Case No.129 of 2017, registered for the offences punishable under Section 30(a) of Bihar Prohibition and Excise Act, 2016, as amended by the Amendment Act 8 of 2018 (hereinafter referred to as 'the Act').
Patna High Court CWJC No.304 of 2020 dt.13-01-2020 2/6 The relief, prayed for by learned counsel for the petitioner, as stipulated in paragraph No.1(i) of the writ application reads as follows :-
"1. (i) To release the vehicle "Mahindra Bolero"
Jeep bearing registration number BR 26E 2361, in favour of the petitioner provisionally on furnishing security bond, which was seized in connectin with Bikramganj P.S. Case No.129 of 2017, in which the vehicle was seized under Bihar Prohibition and Excise Act, 2016 and a confiscation proceeding has been initiated and pendign in the Court of learned Collector, Rohtas."
The prosecution case got initiated on the basis of the self statement of Md. Akram Ansari, Officer-in-Charge, Bikramganj P.S., Rohtas submitted to S.H.O. Bikramganj on 11.05.2017 to the effect that on the basis of secret information that liquor is being transported from Jharkhand State, hence, a raiding team was constituted and raid was laid leading to interception of a Scorpio vehicle from which 212.60 litres of Indian Made Foreign Liquor were recovered. Consequently, Bikramganj P.S. Case No.129 of 2017 was registered.
It is submitted by learned counsel for the petitioner that petitioner is registered owner of the vehicle in question and certificate to this effect has been brought on record as Annexure- P/2 to the writ application.
Patna High Court CWJC No.304 of 2020 dt.13-01-2020 3/6 It is submitted by learned counsel for the State that Confiscation Proceeding with regard to the vehicle in question has already been initiated, being Confiscation Case No.95 of 2017 and the same is pending before Respondent No.03, the Collector-cum- District Magistrate, Rohtas. In such circumstances, learned counsel for the respondent-State has no objection if the writ application is disposed of directing the concerned respondents to conclude the confiscation proceeding within a time frame, if the same has not been concluded.
Considering the fact that once the confiscation proceeding is initiated, the exercise of discretionary jurisdiction under Article 226 of the Constitution of India, having self imposed restriction can be exercised in exceptional or a monstrous situation. Such as when fundamental rights have been violated, the impugned order or the proceedings are wholly without jurisdiction or where the principle of natural justice has been grossly violated or vires of the Act is under challenge. Considering the view taken by the Apex Court in the case of State of Karnataka Vs. K. Krishnan (2000) 7 Supreme Court Cases 80 and in the case of State of West Bengal and Ors. Vs. Sujit Kumar Rana, (2004) 4 Supreme Court Cases 129, a Full Bench Patna High Court CWJC No.304 of 2020 dt.13-01-2020 4/6 of this Court in the case of Baleshwar Roy Vs. The State of Bihar and Ors , 2018(4) PLJR 970, held as follows:
"62. It may, however, be added that Article 226 of the Constitution of India provides power to the High Court to issue writs to any person or authority, including in appropriate cases, any Government, any order or writs (including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part-III and for any other purpose). Similarly Article 227 of the Constitution of India provides the power of superintendence over all Courts and Tribunals throughout the territories in relation to which any High Court exercises its jurisdiction. The powers of the High Court under Articles 226 and 227 of the Constitution of India cannot be curtailed under any circumstance, as the power flows from the Constitution itself. No statutory bar can affect the power of the High Court under Articles 226 and 227 of the Constitution of India.
63. Despite such wide and untrammeled powers, without any circumcision by external restrictions, the Courts have evolved certain self-imposed limits while exercising these powers. The High Courts, normally, would not go beyond justified inhibitions under any Statue except where there is a complete jettisoning of rule of law or under exceptional circumstances which demand timely judicial interdict. This inhibition is basically ordained, keeping in mind that there is a national weal behind any valid piece of Legislation incorporating and inhering in itself the social objective behind any Legislation. Though, no limitations or fetters have been put on the powers of the High Court under Articles 226 and 227 of the Constitution of India, as the High Courts perform as sentinel on the qui-vive, but such power is not to be exercised casually and without coming to the conclusion that non-exercise of such power would lead to positive injustice. Times without number, it has been held by the High Courts that only under condition of a person Patna High Court CWJC No.304 of 2020 dt.13-01-2020 5/6 establishing that substantial injustice has or is likely to ensue, such extraordinary powers can be exercised. It needs no adumbration by this date that the plenary powers of the High Court have only to be exercised in the interest of justice.
64. Thus, an order of release may be passed under Article 226/227 of the Constitution of India, even pending confiscation proceedings, but only when it is established before the Court that the procedure prescribed and the law in that regard has been completely flouted and that there is complete violation of the procedure prescribed for confiscation, viz., notice to the offender before confiscation, allowing him opportunity of giving written representation and affording hearing on the issue to him and that such injustice cannot be remedied without the exercise of the extraordinary power.
65. Needless to state that under Article 226 of the Constitution of India, the Court will not go into the disputed question of facts.
66. Thus, the powers directing for release of the vehicles or goods, during the pendency of the confiscation, can only be sparingly exercised under monstrous situations and circumstances when injustice occurs because of non- fulfillment of the conditions for confiscation."
Considering the fact that confiscation proceeding has been initiated, we are not inclined to pass order for release of the vehicle for the present.
Since vehicle in question was seized on 11.05.2017, the petitioner filed petition for release of the vehicle on 09.10.2017 in Confiscation Case No.95 of 2017 before the District Magistrate, Rohtas, moreover confiscation proceeding was initiated in the year Patna High Court CWJC No.304 of 2020 dt.13-01-2020 6/6 2017 itself, which suggests the callous manner in which the quasi- judicial proceeding is being conducted.
In view of the discussion made above, respondent No.3 is expected to conclude the proceeding of Confiscation Case No.95 of 2017, within a period of four weeks of receipt or production of the order in accordance with law.
The petitioner is also expected to appear regularly and participate in the confiscation proceeding.
Accordingly, with the above observation and direction, the present writ application is disposed of.
The office is directed to communicate this order to the District Magistrate, Rohtas for its strict compliance.
(Dinesh Kumar Singh, J) ( Anil Kumar Sinha, J) sanjeev/-
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