Patna High Court
Shanti Devi vs The State Of Bihar on 30 January, 2024
Author: Jitendra Kumar
Bench: P. B. Bajanthri, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10227 of 2022
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Shanti Devi W/o Shatrudhan Yadav, Resident of At - Village - Bhatkohri Bazar,
Ward No. 08, P.O. Bhatkhori, P.S. - Murliganji, District - Madhepura - 852114.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Excise,
Government of Bihar, Patna.
2. The District Magistrate, Kishanganj.
3. The Superintendent of Police, Kishanganj.
4. The Station House Officer, Kochadhaman, Police Station, Kishanganj.
5. The District Transport Officer, Kishanganj.
6. The Superintendent Excise, Kishanganj.
7. Md. Rashid Jamal, son of Noor Ahmad, resident of village Madarsa Tola,
P.S. Mahalgaon, Distt. Araria, PIN 854325
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Abhimanyu Singh, Advocate
For the Respondent/s : Mr. Vikash Kumar (SC 11)
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)
Date : 30-01-2024
The present Civil Writ Petition, under Article 226 of
the Constitution of India, has been preferred praying for the
following reliefs:-
"(i) To issue a writ of certiorari quashing the auction
notice dated 11.01.2022 and auction of petitioner's
vehicle.
(іi) To issue a writ of Mandamus directing the
respondents to hand over the vehicle to the petitioner
upon payment of penalty;
(ііі) To issue a writ of mandamus directing the
respondents to amend Rule 14 of the Bihar Prohibition
Patna High Court CWJC No.10227 of 2022 dt.30-01-2024
2/24
and Excise Rules, 2021, as Rule 14 is making the
remedy of revision under Section 93 of the Act
infructuous/ redundant/meaningless;
(iv) To issue a writ of Mandamus directing the
respondent's to pay compensation to the petitioner for
auctioning the vehicle of the petitioner before the
passing of the order of Revision.
(v) Issuance of any other writ(s), order(s), or
directions) as may be deemed fit and proper by this
Hon'ble Court."
2. The relevant facts, as emerging from the record, are
that on 09-07-2021 at around 04:30 a.m., when the police
patrolling team was checking vehicle at Mastan Chowk, a Red
Colour MHawk 100 Mahindra TUV 300, bearing Registration
No. BR-43P-6309 was coming from Kishanganj in which four
people were sitting. The police team by signs directed them to
stop but they did not stop and fled. Another vehicle white pick-
up having no number plate was also coming behind the red
vehicle and both the vehicles fled. The police gave a chase and
managed to stop the red color vehicle when the people sitting in
the vehicle tried to run, but they were apprehended with the help
of police team at around 5:15 a.m. at Pucca road going towards
Bahadurgan. However the white pick-up managed to escape.
The apprehended four persons, when asked to tell their names,
they disclosed their names as; (1) Mukesh Kumar, aged about 21
yrs S/O Makhan Prasad Yadav; (2) Niranjan Kumar, aged about
24 yrs, S/O Rabindra Gupta; (3) Sonu Kumar, aged about 22 yrs,
Patna High Court CWJC No.10227 of 2022 dt.30-01-2024
3/24
S/O Satyanarayan Choudhary; (4) Pintu Kumar, aged about 27
yrs S/O Shatrudhan Prasad Yadav. Thereafter the car was
searched. Twenty four bottles of 'MC Dowells No. 1Luxury
Premium Whisky' 'FOR SALE IN ARUNACHAL PRADESH
ONLY' each bottle containing 375 ml of IMFL were found
under the seat. Thus in total nine litres of IMFL was found.
Despite further search, no paper of vehicle was found. Mobile
phones were recovered from them. On questioning the four
persons about the liquor, they informed that the IMFL recovered
from Red color Mahindra TUV 300 belonged to them and that
they are into liquor trade for two years and they bring liquor
from Dalkola&Pajipara Siliguri West-Bengal and kept in
Madhepura for sale and as and when liquor was sold, the profit
was shared among them. Today also from Dalkola, West Bengal,
they hired a pick-up from a person they don't know and were
importing 40 cartoons of liquor & kept 24 bottles in Red Colour
Mahindra Tuv 300 for consuming it in transit. Consequently,
Kochadhama P.S. Case no. 194 of 2021 came to be lodged on
9.7.2021against the said four persons; owner of Red Colour Mahindra Tuv 300 and the unknown driver of White color pick up and others.
3. Subsequently, on police report, District Magistrate- Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 4/24 cum-Collector, Kishanganj initiated confiscation proceeding bearing Confiscation Case No. 559 of 2021 and vide order dated 16.10.2021, passed in the confiscation case, the vehicle bearing Registration No. BR-43P-6309 was confiscated, holding that the seized vehicle was used in transportation and distribution of illicit liquor, which is violation of Bihar Prohibition and Excise Act, 2016. District Magistrate-cum-Collector, Kishanganj further directed to sell the vehicle in question in public auction and to deposit the sale proceed in the State treasury. The said confiscation order of the District Magistrate-cum-Collector, Kishanganj was challenged by the petitioner before Excise Commissioner, Patna in Excise Appeal Case No. 786 of 2021 and the Excise Commissioner, vide order dated 03.12.2021, dismissed the said appeal, upholding the confiscation order of the District Magistrate, holding that the petitioner has failed to produce sufficient evidence to show that the vehicle in question was not used in transportation of illicit liquor. The petitioner also challenged the said order of the Appellate Authority before Additional Chief Secretary, Department of Excise, Government of Bihar in Excise Revision No. 10 of 2022 and the Revisional Authority, vide order dated 11.02.2022 dismissed the said revision petition, upholding the order of confiscating authority Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 5/24 with liberty to District Magistrate-cum-Collector, Kishanganj to proceed with auction in confiscation proceeding as per the Act. The order of the Revisional Authority was challenged by the petitioner before this Court in C.W.J.C. No. 6439 of 2022 and this Court vide order dated 10.05.2022, disposed of the said writ petition with following observation:-
"In said view of the matter, the writ petition is disposed of with liberty to petitioner to avail the remedy of the amended provision 12(A) and 57B of the Bihar Prohibition & Excise (Amendment) Rules, 2022. It is made clear that this Court has not expressed any opinion with respect to merit of case.
Equally, liberty reserved to petitioner to approach this Court for same and subsequent cause of action, if so arises."
4. It is stated by Ld. Counsel for the petitioner that subsequent to passing of order of this Court in writ petition, the petitioner approached the Respondent authorities for release of the vehicle in question, but she came to know that vehicle has been already auctioned on 05.02.2022 by the Respondents issuing auction notice on 11.01.2022 itself. It is not claimed that at any stage of proceeding before the authorities, any stay was granted against auction of the vehicle in question.
5. Heard Ld. Counsel for the Petitioner and Ld. Counsel for the Respondents.
6. Ld. Counsel for the Petitioner submits that the impugned order has been passed by the Confiscating Authority Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 6/24 without any authority of law and in violation of Article 300 A of the Constitution. He further submits that for seizure and confiscation of any vehicle under the Bihar Prohibition and Excise Act, 2016, the vehicle is required to be used in commission of any offence under the Act with involvement of the owner of the vehicle. He refers to Sections 56, 57 B, 58 of the Act and Rule 12A of the Bihar Prohibition and Excise Rules 2021. He further submits that as per the Prosecution case itself, nine litre illicit liquor was recovered from the car in question and as per statements of the four persons sitting in the car, the liquor was kept in the car for their personal consumption during the transit. 40 cartons of liquor was kept in the pick up van for trade. In such situation, it does not lie in the mouth of the Respondents to say that the car was being used to carry the contraband. He further submits that the Petitioner is no way involved in the alleged offence. Even as per the police case, the Petitioner/Owner of the vehicle was not sitting in the car at the time of seizure and recovery of the illicit liquor. As such, the vehicle of the innocent Petitioner/Owner is not liable for seizure or confiscation under the Bihar Prohibition and Excise Act, 2016.
7. He further submits that the auction of the vehicle Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 7/24 before decision of the Revisional authority is also not sustainable in the eye of law. He also submits that the State should be directed to amend the Rule 14 of Bihar Prohibition and Excise Rules, 2021 to provide for finality of the confiscation order only after Revisional order. He further submits that the petitioner is entitled to compensation not only for the vehicle which has already been illegally auctioned, but also for harassment and expenses on forced litigation and deprivation of his property without any authority of law.
8. Per contra, Ld. Counsel for the Respondents-State defends the confiscation order, appellate order as well as revisional order of the authorities submitting that as per the facts and circumstances of the case and the provisions of the Bihar Prohibition and Excise Act, 2016 , the vehicle in question is liable to be seized, confiscated and auctioned. He further submits that there is no illegality in auctioning the vehicle in question after the order of the Appellate Authority and before the Revisional Order. He refers to Rule 14 of the Bihar Prohibition and Excise Rules, 2021 to show that the confiscated vehicle could be auctioned before the Revisional order. He also submits that the Petitioner is not entitled to any compensation. He further submits that the prayer of the Petitioner to issue writ Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 8/24 of mandamus to the State to amend Rule 14 is also not sustainable in the eye of law.
9. In view of the aforesaid facts and circumstances and rival submissions of the parties, the legal questions which arise for consideration by this Court are as follows:
i) Whether the vehicle in question is liable to be seized, confiscated and auctioned under Bihar Prohibition and Excise Act, 2016.
ii) Whether the Petitioner is entitled to any compensation.
iii) Whether this Court can issue writ of mandamus to the State Legislature/Executive to amend Rule 14 of Bihar Prohibition and Excise Rules, 2021.
10. Before we consider the rival submissions of the parties, it would be imperative to refer to the relevant statutory provisions and case laws:-
11. Sections 32, 47, 56, 57B, 58, 60, 61, 92, 93, 95 of the Bihar Prohibition and Excise Act, 2016 and the Bihar Prohibition and Excise Rules, 2021 are relevant statutory provisions in the aforesaid facts and circumstances.
12. Section 32 deals with presumption of offence in certain cases. It reads as follows:-
"32. Presumption as to commission of offence in certain cases.-
(1) In prosecution of an offence under this Act, the accused person would have to account for the possession of any liquor, intoxicant, material, utensil, implement or apparatus involved in manufacture or storage of such liquor.
Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 9/24 (2) In the event of a failure to offer a satisfactory explanation, there shall be a presumption that the accused person is guilty of the commission of such offence, unless proved otherwise.
(3) Where any equipment, machinery, animal, vessel, cart, vehicle, conveyance or any premises are used in the commission of an offence under this Act, and are liable to confiscation and/or liable to be sealed, the owner or occupier thereof would need to account satisfactorily, and in the absence of a satisfactory explanation the presumption that accused person committed the offence shall arise, unless proved otherwise."
13. Section 47 provides for liability of the person who is under control of the vehicle knowingly permits it to be used for commission by any other persons of an offence punishable under provision of the Excise Act to punishment in the same manner as if he had himself committed the said offence. It reads as follows:-
"47. Penalty for allowing premises, etc., to be used for commission of an offence:- Whoever, whether being a licensee under this Act or otherwise, and having the control or use of any house, room, enclosure, space, animal or conveyance, knowingly permits it to be used for commission by any other person of an offence punishable under any provision of this Act, shall be punishable in the same manner as if he had himself committed the said offence."
14. Section 56 of the Act provides for liability of seized vehicles, amongst other seized items, for confiscation. As per this Section, as it stood prior to amendment in 2022, vehicle used for carrying any intoxicant or liquor is liable for confiscation. The pre-amendment provision of Section 56 is relevant because alleged offence has been committed by the Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 10/24 petitioner on 26.09.2017. Section 56 prior to amendment in 2022 reads as follows:-
"56. Things liable for confiscation.- Whenever an offence has been committed, which is punishable under this Act.-
(a) any intoxicant or liquor unlawfully imported, transported, manufactured, sold, stored, possessed, material, utensil, implement, apparatus, package or covering and or the other contents, if any, of such receptacle, package or covering for the purposes of storing, manufacturing or labelling such intoxicant or liquor;
(b) any animal, vehicle, vessel or other conveyance used for carrying any intoxicant or liquor; or
(c) 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;
shall be liable to be confiscated in a manner prescribed under the provisions of the Act,
(d) The State Government, if deem necessary, may issue necessary directions, guidelines, Regulations and instructions with respect to mode and manner of search, seizure and confiscation."
(Emphasis supplied)
15. Section 57B as inserted in 2022, by way of amendment, provides that any vehicle used for committing any offence punishable under the Prohibition and Excise Act and having been seized by any police officer or Excise Officer may be released by the Collector upon payment of such penalty as may be notified by the State Government. This Section is applicable in all pending confiscation proceedings by virtue of its Explanation No.2. This Section reads as follows:-
"57B. Things or premises liable to be released upon penalty.-(1) Any animal, vehicle, vessel or other conveyance used for committing any offence punishable Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 11/24 under this Act that has been seized by any police Officer or Excise Officer may be released by the Collector upon payment of such penalty as may be notified by the State Government.
(2) Any premises or part thereof used for committing any offence punishable under this Act that has been seized by any police Officer or Excise Officer may be released by the Collector upon payment of such penalty as may be notified by the State Government.
(3) If the person concerned does not pay the penalty, then the Collector shall proceed to confiscate the said animal, vehicle, vessel or other conveyance and premises as per section-58.
Explanation 1.- It shall not be a right of the accused to get his conveyance, item or premises released upon payment of the required penalty. The Collector, based upon a report by a police officer or an excise officer, may, for reasons to be récorded in writing, still refuse to release the said conveyance, item or premises and proceed ahead with confiscation and auction/destruction.
Explanation 2.-The Collector shall, from the date of this Amendment coming into force, close the on-going confiscation proceedings if the person concerned pays the penalty as notified and release such vehicle, conveyance or premises.
Explanation 3.-Such release shall not affect the outcome of trial, if any before the Special Court."
(Emphasis supplied)
16. Section 58 of the Act provides for the procedure and conditions for confiscation of the vehicle or conveyance and other things by District Collector or Officer authorized by him. As per Sub-section 1 of Section 58, the officer seizing the vehicle is required to report to the District Collector without any reasonable delay and as per Sub-Section 2 if the Collector is satisfied, as per the report, that an offence under this act has been committed, he is authorized to confiscate the vehicle, but, as per Sub-section 3, only after giving reasonable opportunity to the Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 12/24 person concerned for hearing. Section 58 reads as follows:-
"58. Confiscation by District Collector.-(1) Notwithstanding anything Contained in this Act or any other law for the time being in force, where anything liable for confiscation under this Act is seized or detained under the provisions of this Act, the officer seizing and detaining such property shall, without any reasonable delay submit a report to the District Collector who has jurisdiction over the said area;
(2) On receipt of the report under sub-section (1), the District Collector if satisfied that an offence under this Act has been committed, may, whether or not prosecution is instituted for the commission of such an offence and whether or not a case is pending before any court, order confiscation of such property;
(3) The Collector shall, before passing an order under sub-
section (2), give a reasonable opportunity to the person concerned, of being heard;
(4) While making an order of confiscation under sub- section (2), the District Collector may also order that such of the properties which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed. Whenever any confiscated article has to be destroyed in conformity with these provisions, it shall be destroyed in the presence of a Executive Magistrate or officer ordering the confiscation or forfeiture, as the case may be, or in the presence of the Excise Officer not below the rank of a Sub-Inspector; (5) While making an order of confiscation under sub- section (2), if the District Collector is of the opinion that it is expedient in the public interest to do so, he may order the said property or any part thereof to be sold by public auction or dispose of departmentally and proceeds deposited with the State Government, (6) The District Collector shall submit a full report of all particulars of confiscation to the Commissioner of Excise within one month of such confiscation."
(Emphasis supplied)
17. Section 61 provides that when an order for confiscation of any property, which includes vehicle also, has been passed under section 58 of the Bihar Prohibition and Excise Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 13/24 Act, 2016 and such order has become final, the property gets vested in the State Government free from any encumbrance. Section 61 reads as follows:-
"61. Confiscated articles to vest with the Collector.- When an order for confiscation of any property has been passed under Section 58 and such order has become final in respect of the whole or any portion of such property, such property or portion thereof, as the case may be, shall vest with the State Government free from any encumbrance."
18. Section 92 provides for departmental appeal against the final orders passed by the authorities under the Act. The order passed by Excise Officer, lower in rank than District Collector, is appealable to District Collector within 60 days, order passed by District Collector is appealable to Excise Commissioner and order passed by Excise Commissioner is appealable to the State Government within 90 days. However, no second appeal is provided against an order passed by Excise Commissioner. Section 92 reads as follows:-
"92. Appeals.-(1) All final orders passed by any Excise Officer other than the Excise Commissioner or Collector under this Act, shall be appealable to the Collector within sixty days from the date of the order.
(2) All final orders passed by the Collector and Excise Commissioner shall be appealable to the Excise Commissioner and the State Government respectively within ninety days from the date of the order complained of. Provided that no second appeal shall lie against an order passed by the Excise Commissioner on appeal. (3) The State Government may make rules in this behalf."
19. Section 93 provides for departmental revision. The Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 14/24 revisional power has been vested with the State Government. Section 93 reads as follows:-
"93. Revision.- The State Government may, on its own motion or on an application made to it, call for and examine the records of any proceeding before any excise officer or any document, including that relating to renewal or refusal of license or grant of permit, pass etc. under this act, for the purpose of satisfying itself as to the correctness and legality of any order passed in, and as to regularity of any such proceeding and may, when calling for such record, direct that the order be not given effect till the pendency of the examination of the record, so called for. After examining the record, the State Government may annul, reverse, modify or confirm such order, or pass such other order as it may deem fit."
20. Under Section 95 of the Bihar Prohibition and Excise Act, 2016, the Bihar Government is empowered to make rules to carry out the purposes of the Act. Bihar Prohibition and Excise Rules, 2021 has been made by Bihar Government under Section 95 of the Act. Rule 12A, as inserted in 2022 by way of amendment, provides for release of vehicle, conveyance etc. on payment of penalty. This Rule is applicable to all pending confiscation/auction proceedings by virtue of its Explanation. This Rule reads as follows:-
"12A. Release of Vehicles, Conveyance etc. on Payment of Penalty.- (1) If any vehicles, conveyance, vessel, animal etc. has been seized by any police or excise officer under the Act, then in terms of Section 57B (1) of the Act, the Collector or an officer authorized by him upon receipt of an application in Form IV by the owner of the said conveyance or vehicle etc., may release the said conveyance or vehicle upon payment of such penalty as may be ordered by the Collector or the officer authorized by him.
Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 15/24 Provided, where it is not possible to ascertain the owner of the vehicle or the owner is not coming to claim the vehicle, the Collector or the officer authorized by him, after waiting for 15 days from the date of seizure, shall proceed to confiscate and auction the vehicle as per the provisions of the Act.
(2) The amount of penalty shall be as decided by the Collector or the Officer authorized by him. While imposing the penalty, he shall have due regard to the quantity of intoxicant recovered, involvement of the vehicle owner and the latest insurance value of the vehicle.
In no case, the penalty should be less than 10% of the insured value of the vehicle and more than Rs. 5 lakhs. The insured value is the value of the vehicle as assessed by the insurance company. Where, the insured value is not available or the Collector or the Officer authorized by him has reason to believe that the vehicle is undervalued, he shall get the valuation done by the District Transport Officer. In any case, the Collector shall not wait beyond 15 days from the date of seizure and if during this period, the accused/owner does not pay up the penalty, he shall proceed with the confiscation/auction."
(3) Notwithstanding above, if on a report by police officer or excise officer, the Collector or the officer authorized by him is satisfied that releasing the vehicle or conveyance shall not be in the public interest, he shall proceed ahead with the confiscation of the said vehicle or conveyance and its subsequent auction/disposal.
(4) Where the conveyance is such that its valuation/insurance is not possible, the Collector or the officer authorized by him shall impose such fine as he deems fit. While imposing such fine, the Collector or the officer authorized by him shall have due regard to the economic status of the individual, nature of his involvement in the crime and the quantum of intoxicant recovered.
(5) Such penalty shall be, regardless of the outcome of the trial if any, before the Special Court, non-refundable. (6) The owner of the vehicle/conveyance shall, after the release of the vehicle/conveyance, produce the vehicle/conveyance as and when required by the authorities.
Explanation. In all pending/ongoing cases of confiscation/auction of vehicles, the Collector or the officer authorized by him may give an opportunity to the existing owner to pay the aforesaid penalty and get the vehicle released. Upon satisfaction about ownership and upon payment of such penalty, the ongoing Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 16/24 confiscation/auction proceeding may be dropped and the vehicle released."
(Emphasis supplied)
21. Rule 14 of the Bihar Prohibition and Excise Rules, 2021 provides that the confiscated vehicle can be auctioned after finality of the confiscation order. The finality of this order is attained on the date of appellate order under Section 92 of the Bihar Prohibition and Excise Act. The Rule 14 as stood at the relevant time in 2021 reads as follows:-
"Rule 14.- Disposal of seized/confiscated things. - The things seized/confiscated by the Collector may be disposed of by the order of Collector in the following manner:-
(1) If the Collector, is satisfied that any seized article, is liable to speedy and natural decay or is of trifling value or can be put to misuse, he may, in exercise of power under Section 57 of the Act, order for destruction of the same at any time before passing the order of confiscation. (2) The confiscated Animal/vehicle/vessel/other conveyance/premises or part thereof shall be put to public auction and sold to the highest bidder within a period of one month from the date of attainment of finality of order of the confiscating authority or such extended period as deemed fit by the Collector or may be put for government use in the manner prescribed.
Explanation.- the word "finality" connotes the date of order of Excise Commissioner passed under Section 92 of the Act."
(Emphasis supplied)
22. The bare reading of Section 56(b) of the Act clearly shows that any vehicle or conveyance can be seized and confiscated under the Bihar Prohibition and Excise Act, 2016 only when the vehicle has been used for carrying any Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 17/24 intoxicant or liquor. Section 58(3) of the Act provides that during confiscation proceeding, the owner of the vehicle has to be given opportunity of being heard. Section 57 B(1) also provides that any vehicle, or other conveyance used for committing any offence punishable under the Act and seized may be released upon payment of penalty. Rule 12-A(2) of the Bihar Prohibition and Excise Rules, 2021 also provides that while imposing penalty under Section 57-B of the Act, the authority concerned is required to give due regard to the involvement of the vehicle owner.
23. The first and foremost thing, which emerges from the aforesaid discussion of the statutory provisions, is that no vehicle can be seized or confiscated without its use in commission of any offence under the Bihar Prohibition and Excise Act, 2016. Under Section 30 of the Act, transport of illicit liquor or intoxicant is an offence and in commission of such offence, a vehicle can be used. As such, use of the vehicle in transport of illicit liquor/intoxicant is sine qua non for its seizure and confiscation. It also emerges that just use of the vehicle to carry intoxicant or liquor is also not sufficient for its seizure and confiscation. The involvement or connivance of the owner of the vehicle in such illegal use of the vehicle is also a prerequisite for Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 18/24 seizure and confiscation of the vehicle or imposing any penalty for release of the vehicle. Such view has been consistently expressed by this Court in various judicial pronouncements under writ jurisdiction.
24. In Mohammad Basim Akram vs. State of Bihar [2022 (6) BLJ 540] the driver of a vehicle was found to be carrying some quantity of intoxicant or liquor in the vehicle for his personal consumption without any knowledge of the owner of the vehicle, this court held that the vehicle could not be construed of having indulged in transportation of illicit liquor. The facts of the case was that 8.8 litre illicit liquor was recovered from the cabin of the driver and driver had confessed that he had purchased the contraband for his personal consumption and kept in the cabin.
25. Similarly, there may be a situation where a vehicle has been stolen or robed by criminal to carry intoxicant or liquor. In such situation also, it cannot be contended that there was involvement or connivance of the owner in commission of the offence under the Act. For such illegal use of the vehicle, the innocent owner of the vehicle cannot be punished by seizure and confiscation of the vehicle.
26. There is also possibility of a situation where in a Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 19/24 public transport, a passenger may be carrying some contraband in his clothes or small carry-bag without any knowledge of the owner of vehicle or conductor or driver of the vehicle. In such situation also, the vehicle cannot be said to be used for conveying the contraband and hence, it cannot be liable to be seized and confiscated. Such situation may happen even in a train where passengers may be carrying small bag with contraband. It does not mean that the train was used for conveyance of the contraband.
27. Coming to the case at hand, we find that the car in question bearing registration No. BR-43P-6309 owned by the petitioner was stopped by the Police team on 9.7.2021. As per the Police case, four persons were sitting in the car and on search, total nine litres of illicit liquor was recovered from the vehicle and as per statements made by the four persons sitting in the car, they were involved in illicit liquor trade and they had hired one pick-up van for carrying 40 cartons of liquor which was also coming along with this vehicle. As per further statements of the Accused, this nine litres of liquor was kept in the car in question by the occupants for their personal consumption during the transit. In such situation, it would be erroneous to hold that the car was used to carry the contraband Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 20/24 because the person sitting in the car had kept the nine litre illicit liquor for their personal consumption during the transit and the illicit liquor was being carried / transported by the pick-up vehicle which managed to escape. The word "use" cannot be interpreted liberally giving expansive meaning. It has to be interpreted strictly as it has penal consequences. Even the object and scheme of the Bihar Prohibition and Excise Act does not warrant expansive interpretation. At most, the persons who were found in illegal possession of the contraband may be prosecuted.
28. It is also relevant to point out that presumption under Section 32 of the Act against the owner of the vehicle may arise only when the vehicle is held to be used in carrying the contraband and not otherwise. The vehicle has already been held not to have been used in carrying the illicit liquor.
29. In view of the aforesaid facts and circumstances of the case, We find that the vehicle in question is not liable to be seized and confiscated under the act. The persons found to be in illegal possession of the contraband may be prosecuted for offence committed under the Act. Hence, the orders passed by the authorities concerned for confiscation and auction of the car in question are arbitrary and hit by Article 14 of the Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 21/24 Constitution. They are also violative of Constitutional right of the petitioner to hold property as provided in Article 300 A of the Constitution, which prohibits any deprivation of property without authority of law. The Bihar Prohibition and Excise Act no way authorises the officials to seize, confiscate and auction the vehicle in the alleged facts and circumstances of the case. Hence, the seizure, confiscation and auction of the car in question are without any authority of law. Hence, these orders are accordingly liable to be quashed. The petitioner, whose constitutional right to property has been violated, is entitled to adequate compensation. She is also entitled to compensation on account of expenditure and harassment in course of forced litigations. It is also pertinent to note that the purchaser of the Car in auction is not at fault. It is the State authorities who have auctioned the vehicle without any authority of law and, hence, the State is liable to pay the insurance value of the vehicle to the petitioner/owner of the vehicle besides compensation on account of harassment and expenses on forced litigations.
30. As far as prayer for issuance of writ of mandamus directing the Respondent-State to amend Rule 14 of the Bihar Prohibition and Excise Rules, 2021 is concerned, it is pertinent to observe that it is well settled principle that judiciary cannot Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 22/24 give direction to the legislature to enact or amend any law. Power to enact or amend any law is a constitutional power vested in the legislature. There are catena of judgments of Hon'ble Supreme Court on this issue. To quote a latest judgment of Hon'ble Supreme Court titled B.S. Rasjesh Agrajit Vs. Union of India, a civil writ petition decided on 5.10.2020, where Hon'ble Apex Court has observed as follows:-
"2. .............................. the petitioner seeks a direction to Parliament to enact a law providing a uniform scheme of compensation for persons who are affected by violence and other tragedies. The law on the point is well-settled. No mandamus can be issued to Parliament as a legislating body to enact legislation."
31. Hon'ble Supreme Court has again observed in paragraph-6 of State of Himachal Pradesh Vs. Satpal Saini, [AIR 2017 SC 810] as follows:-
"6. ............. A direction, it is well settled, cannot be issued to the legislature to enact a law. The power to enact legislation is a plenary constitutional power which is vested in Parliament and the State legislatures under Articles 245 and 246 of the Constitution. The legislature as the repository of the sovereign legislative power is vested with the authority to determine whether a law should be enacted. The doctrine of separation of powers entrusts to the court the constitutional function of deciding upon the validity of a law enacted by the legislature, where a challenge is brought before the High Court under Article 226 (or this Court under Article 32) on the ground that the law lacks in legislative competence or has been enacted in violation of a constitutional provision. But judicial review cannot encroach upon the basic constitutional function which is entrusted to the legislature to determine whether a law should be enacted. Whether a Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 23/24 provision of law as enacted sub-serves the object of the law or should be amended is a matter of legislative policy. The court cannot direct the legislature either to enact a law or to amend a law which it has enacted for the simple reason that this constitutional function lies in the exclusive domain of the legislature."
32. Hon'ble Supreme Court in paragraph 19 of Asif Hameed v. State of Jammu and Kashmir [1989 Supp (2) SCC 364] has observed as follows:-
"19. ... The Constitution does not permit the court to direct or advise the executive in matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or executive .... "
33. Hence, in our considered opinion, no direction could be issued to the State legislature or the executive to amend Rule 14 of the Bihar Prohibition and Excise Rules, 2021.
34. Hence, the writ petition is partially allowed quashing the confiscation order dated 16.10.2021 passed by District Magistrate-cum-Collector, Kishanganj in Confiscation Case number 559 of 2021, the Appellate Order dated 03.12.2021 passed by Excise Commissioner in Excise Appeal Case No. 786 of 2021 as well as Revisional Order dated 11.02.2022 passed in Excise Revision No. 10 of 2022. District Magistrate cum Collector, Kishanganj is also directed to pay the insurance value of the vehicle in question to the Petitioner Patna High Court CWJC No.10227 of 2022 dt.30-01-2024 24/24 along with compensation of Rs. 50,000/-(Rupees Fifty thousand only) to the Petitioner.
35. For decision regarding the insurance value of the vehicle, the Petitioner is required to submit insurance papers of the vehicle at the time of its seizure along with registration certificate to the District Collector, Kishanganj, within fifteen days, and thereafter the District Collector is directed to decide the insurance value within next ten days and pay the total amount i.e. insurance value and rupees Fifty thousand within next ten days.
(Jitendra Kumar, J) I agree.
(P. B. Bajanthri, J)
S. Ali/ Chandan/
Ravishankar
AFR/NAFR AFR
CAV DATE 01.08.2023
Uploading Date 30.01.2024
Transmission Date