IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.1396 of 2023

======================================================

Mantul Devi Wife of Jaganath Yadav, Resident of Village-Chainpura, Ward

no.06, P.S.-Pupri, Distt.-Sitamarhi.

... ... Petitioner/s

Versus

1.The State of Bihar through the Addl. Chief Secretary, The Bihar Prohibition

of Excise Department, Bihar, Patna.

2.The Commissioner, Bihar Prohibition of Excise Department, Bihar, Patna.

3.The Distt. Magistrate, Sitamarhi.

4.The Superintendent of Police Sitamarhi.

5.The Excise Superintendent, Excise Department, Sitamarhi.

6.The Sub-Inspector, A.L.T.F.-05, Pupri, Sitamarhi.

7.The Officer-in Charge, Pupri P.S., Sitamarhi.

... ... Respondent/s

======================================================

Appearance :

For the Petitioner/s: Mr.Devendra Kumar, Advocate

For the Respondent/s: Mr.Vikash Kumar (SC 11)

======================================================

CORAM: HONOURABLE THE CHIEF JUSTICE

and

HONOURABLE MR. JUSTICE PARTHA SARTHY

ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 02-02-2023

Heard learned counsel for the petitioner and

learned counsel for the State.

Petitioner has prayed for the following reliefs: -

“i. For issuance of appropriate writ/writs for directing and

commanding the respondent authorities for releasing

the Autoriksha bearing registration no.BR-30P,5749 in

connection with Pupri P.S case no. 244/2022. Whereby

and whereunder the respondents have illegally

confiscated the Auto-riksha of the owner. The

petitioner has no concern with the Foreign Wine

/Deshi wine and authorities has alleged and recovered

9.000 Litre Nepali Sauphy under the back sheet of

Auto-rickshaw Bajaj company standing on Bathan in

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the open sky from residential house.

ii. And any other 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 14

th

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 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.-

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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 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.

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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 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.

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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

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

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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. 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

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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 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

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

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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.”

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

th

of

January, 2020, passed in C.W.J.C. No. 20598 of 2019,

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titled as Md. Shaukat Ali Vs. The State of Bihar& Ors.,

and the order dated 14

th

of 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 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

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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

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.;

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(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 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

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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

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

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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 16

th

of

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

authority to positively conclude the confiscation

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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 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

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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.;

(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

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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 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

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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

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

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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

16

th

of 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

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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

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

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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

th

of January, 2020. In

the instant case, seizure is of the year 2019 and no

proceedings of confiscation have commenced.

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,

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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 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

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“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 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 20.02.2023 at 10:30 A.M.

before the appropriate authority which may be in the attending

facts, the Collector of the Sitamarhi 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

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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 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.

It is submitted by learned counsel for the State that

during pendency of writ petition, there has been amendment in

the Bihar Prohibition and Excise Rules, 2021 and a new Rule

12(A) has been inserted which reads as under:-

“12. A. 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

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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.

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 penalty shall be 50% of the latest

insured value of vehicle/conveyance. 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 and 50% of that value

shall be the amount of penalty.

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.

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(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

confiscation/auction proceeding may be

dropped and the vehicle released.]”

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) 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.

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.

chn/-

(Sanjay Karol, CJ)

( Partha Sarthy, J)

AFR/NAFR

CAV DATE

Uploading Date 03.02.2023

Transmission Date