Patna High Court
Umesh Kumar @ Umesh Mahto vs The State Of Bihar And Ors on 29 April, 2019
Author: Jyoti Saran
Bench: Jyoti Saran, Anjani Kumar Sharan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23163 of 2018
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Umesh Kumar @ Umesh Mahto, son of Sri Tribhuwan Mahto, resident of
Village Chhotka Edla, Police Station Simariya, District Chatra (Jharkhand)
... ... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Prohibition, Excise and
Registration Department, Government of Bihar, Patna
2. The District Magistrate, Gaya
3. The Excise Superintendent, Gaya
4. The S.H.O. Sherghati (Dobhi), Police Station, Gaya
... ... Respondent/s
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with
Civil Writ Jurisdiction Case No. 23783 of 2018
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Rajesh Kumar Mishra, son of Shri Shravan Kumar Mishra @ Shravan
Mishra, resident of Village +PO Sirsi, PS Nanpur, District Sitamarhi; at
present Village Dashratha, Siristabad, Kirayadar of Bhushan Jee, PS
Gardanibagh, District Patna
... ... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Department of Excise,
Government of Bihar, Patna
2. The District Magistrate, Patna
3. The Senior Superintendent of Police, Patna
4. The Superintendent of Police, Rural, District Patna
5. The S.H.O. Khiri More Police Station, District Patna
... ... Respondent/s
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Appearance :
(In Civil Writ Jurisdiction Case No. 23163 of 2018)
For the Petitioner/s : Mr.Shailesh Kumar, Advocate
For the Respondent/s : Mr.Kumar Manish -SC5
Patna High Court CWJC No.23163 of 2018 dt.29-04-2019
2/6
(In Civil Writ Jurisdiction Case No. 23783 of 2018)
For the Petitioner/s : Mr.Sunil Kumar Pandey, Advocate
For the Respondent/s : Mr.Vivek Prasad- GP7
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
and
HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date : 29-04-2019 In each of the two cases the vehicles were seized because they were loaded with Mahua flowers in different quantities and FIR has been instituted under the provisions of the Indian Penal Code as well as the Bihar Prohibition and Excise Act, 2016 for alleged recovery of Mahua flowers.
In CWJC No. 23163 of 2018, a counter affidavit has been filed today on behalf of the State informing that confiscation case has been initiated though Mr. Shailesh Kumar, learned counsel representing the petitioner submits on instruction that no notice has been issued.
Be that as it may, the issue which engages this Court to seek response from the respondents is whether Mahua flowers on its own are capable of being seized leading to initiation of confiscation case by taking recourse to the provisions of the Bihar Prohibition and Excise Act, 2016 bearing in mind that while Patna High Court CWJC No.23163 of 2018 dt.29-04-2019 3/6 provision of Section 56 of the Act which lists the things for confiscation does not include Mahua flower, Section 2(16) of the Act includes Mahua within the ambit of country liquor or traditional liquor only when it is converted into plain or spicy spirit. There is although an impediment for the petitioner in the Bihar Excise (Mahua Flowers) Rules, 2006 which does not permit any person to possess more than 5 kgs. Mahua and in so far as the present set of cases are concerned, the petitioners were found in possession of Mahua flowers exceeding the limit, i.e. 5 kgs. but according to Mr. Shailesh Kumar, learned counsel for the petitioner, the Mahua Flower Rules, 2006 does not conceive of seizure or initiation of confiscation proceeding on alleged violation, no consequences either, have been spelt out in the Act for alleged violation of its provision. According to learned cousnel, until such time that these flowers are converted into spirit, the persons concerned cannot be subjected to prosecution or confiscation proceeding.
Let the counter affidavit filed in CWJC No. 23163 of 2018 be kept on record but since the same does not address the issue raised, we allow Mr. Kumar Manish, SC 5 and Mr. Vivek Prasad, GP 7, appearing in the respective cases, to file counter affidavit while dealing with the issues that have been taken note Patna High Court CWJC No.23163 of 2018 dt.29-04-2019 4/6 hereinabove and bearing in mind the stipulations in the Act and the Rules.
We keep the larger issue open for discussion but for the present and by way of interim relief, we direct for the release of the vehicles in question i.e. (1) Bolero Pickup Van bearing Registration No. JHO2W/9540, Chasis No. MA1ZN2GHKC1J69029, Engine No. GHC1J43035 of the petitioner in CWJC No. 23163 of 2018 which has been seized in connection with Sherghati (Dobhi) PS Case No. 95 of 2018 for the alleged offence punishable under Section 30(a) (d) of the Bihar Prohibition and Excise Act, 2016 alleging recovery of 1280 kgs. of Mahua flower and (2) Mahendra Bolero Pickup BS3, bearing Registration No. BR1GE 9724 of the petitioner of CWJC No. 23783 of 2018 which has been seized in connection with Khiri More PS Case No. 81 of 2018 for the alleged offence punishable under Sections 2(v), 3 /4 of the Bihar Mahua Flower Act, 2006 and Section 3(D) of the Bihar Prohibition and Excise Act, 2016 alleging recovery 1650 kgs. of Mahua flower on production of ownership and registration with respect to the vehicle in question in his name before the Collector-cum-District Magistrate, Gaya/ Collector-cum-District Magistrate, Patna, respectively, with one surety along with a Bank Guarantee or original title deed of Patna High Court CWJC No.23163 of 2018 dt.29-04-2019 5/6 immovable property situated within the concerned district to the extent of the value of the vehicle as indicated in the insurance document. The petitioner(s) while submitting the surety and the bank guarantee or the original title deed, as the case may be, shall also furnish the following affidavits / undertakings:
(i) That the vehicle in question has never been involved in any offence of similar nature in past and shall not indulge in similar offence in future.
(ii) That the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding., and shall not alienate the vehicle during this period.
(iii) The petitioner shall furnish an undertaking to produce the vehicle before the confiscating authority as and when required.
(iv) Prior to release of the vehicle, a Panchanama would be got prepared by the Collector-cum-District Magistrate, Gaya/ Collector-cum-District Magistrate, Patna, wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and the same shall be kept on record so that in future, if so required, it may be used as a secondary evidence. The petitioner Patna High Court CWJC No.23163 of 2018 dt.29-04-2019 6/6 shall furnish an undertaking not to challenge the said Panchanama in course of trial.
The release shall be allowed within a period of 14 days from the date of production of ownership/registration papers supporting the claim of the petitioner together with one surety along with the bank guarantee to the extent of the value of the vehicle as indicated in the insurance amount and the undertakings as stated above. This release of the vehicle would, however, be subject to finalization of the confiscation proceeding. The title deed papers shall remain in safe custody of the Confiscating Authority concerned subject to final decision in the confiscation proceedings.
List these matters on the issue framed hereinabove after Summer Vacation on 24th June, 2019 at 2.15 PM.
(Jyoti Saran, J) ( Anjani Kumar Sharan, J) mrl./-
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