JUDGMENT : JYOTI SARAN, J. Heard Mr. Suraj Narain Yadav, learned counsel for the petitioner and Mr. Kumar Pankaj for the State. 2. With the consent of the parties the writ petition has been taken up with the view to final disposal at the stage of admission itself. 3. The petitioner is aggrieved by the order dated 11.11.2017 passed by the District Magistrate, Nalanda in Confiscation (Excise) Case No. 68 of 2017 whereby the motorcycle of the petitioner bearing registration No. BR28F4992 has been confiscated in a matter arising from Giriyak P.S. Case No. 69 of 2017 registered for alleged offences punishable under the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as 'the Act'). A preliminary objection was raised by Mr. Pankaj learned State counsel as to the maintainability of the writ petition in view of the appellate remedy so available under 'the Act' but in the nature of the order passed by the confiscating authority which goes to the root of the exercise, that while waiving of the preliminary objection we have allowed the parties to address on merits. 4. A copy of the F.I.R. together with the seizure list is enclosed at Annexure-2 to the writ petition and a plain reading of the allegations would confirm that since the cousin brother of the petitioner riding the motorcycle in question was found in possession of the Chowa which has been illegally noted as Black Jaggery that he was taken into custody and a police case registered under 'the Act'. The motorcycle in question was seized leading to registration of a confiscation case in question. The allegation in the FIR is that the Chowa (Kala gur) was intended to be supplied to one Dinesh Prasad who would supply the said Chowa(Kala gur) to the people engaged in the illegal trade of manufacturing of liquor from the said Chowa(Kala gur). It is on a disclosure made by a person, found in possession of Chowa(Kala gur) that raids were conducted and when the police did recover Chowa(Kala gur) from the different places and which became the basis for institution of the case. It is on a disclosure made by a person, found in possession of Chowa(Kala gur) that raids were conducted and when the police did recover Chowa(Kala gur) from the different places and which became the basis for institution of the case. It is taking note of the nature of the seizure which related to Chowa (Kala gur) exclusively with no accompanying circumstances regarding dealing in illegal liquor that we put the District Magistrate i.e Confiscating authority to notice as to the exercise of jurisdiction in the undisputed circumstances where there was nothing to support the allegation of illegal trade in liquor save and except, the recovery of Chowa(Kala gur). 5. A counter affidavit has been filed and the District Magistrate, Nalanda has shouldered of the responsibility on the Exercise Superintendent, Nalanda, who in turn has parroted the allegation regarding Chowa(Kala gur) being used in manufacturing of liquor but yet, the stand taken, does not substantiate the allegation because Chowa(Kala gur) is incapable of being turned into liquor unless it is first converted into spirit and which requires a manufacturing process. The seizure list accompanying the F.I.R. does not refer to any equipment found at the place, which was capable of manufacturing spirit from the Chowa(Kala gur) so seized. It is thus to be seen whether Chowa(Kala gur) on its own is a prohibited item and capable of seizure and for drawing confiscation proceeding. We do not intend to detain ourselves and would simply refer to the definition of country or traditional liquor found in Section 2(16) of 'the Act' which is also relied upon by the respondents for supporting the impugned order and which reads under: "2(16)"country or traditional liquor" means plain or spiced spirit made from mahua, rice, gur, molasses or grains; or plain or spiced spirit made from silent spirit or extra neutral alcohol; or Tari, or all fermented liquors, including pachwai, made from mahua, rice, millet or other grains according to native processes." 6. The definition is self eloquent and it is either plain or spiced spirit, apart from the other prohibited items, which if, found in possession of an offender, whether prepared from Mahua or rice or gur or molasses or grains, that is liable to seizure and consequentially for drawing confiscation proceeding and not the raw material on its own, be it Mahua, rice, gur, molasses or grains as referred to in Section 2(16) of ‘the Act’. 7. Section 30 of 'the Act' is the penal provision and runs under: "30. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued under this Act or in contravention of any condition of any license or permit or pass, renewed under this Act or without a valid license, permit or pass issued under this Act- (a) manufactures, possesses, buys, sells, distributes, collects, bottles, imports, exports, transports or removes any intoxicant or liquor; or (b) cultivates any hemp plant; or (c) constructs or establishes or works any manufactory, distillery, brewery or warehouse; or (d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, or premises, whatsoever, for the purpose of manufacturing any intoxicant or liquor; or Explanation.– The word “material” means any material, and includes any food or non food item, that may be used for preparing any liquor or intoxicant. (e) possesses any material or film either with or without the State Government logo or logo of any State or wrapper or any other thing in which liquor or intoxicant can be packed or any apparatus or implement or machine for the purpose of packing any liquor or intoxicant; or (f) removes any liquor or intoxicant from any distillery, brewery, warehouse, other place of storage licensed, established, authorized or continued under this Act; or (g) manufactures, possesses, sells, distributes, bottles, imports, exports, transports or removes, any preparation or ingredient made with or without the use of any intoxicant or liquor, which can serve as an alcohol or a substitute for alcohol and is used or likely to be used or consumed for the purposes of getting intoxicated, shall be punishable with imprisonment for a term not less than ten years but which may extend to imprisonment for life and with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees. Explanation.-“Possession” here means the possession by any family or member of that family and includes the knowledge of possession where any member of a family or the family itself know that such possession is illegal, whether it is in his or her own possession or with some other member of the family." 6. Section 56 of 'the Act' lists the things which are liable for confiscation and includes any intoxicant or liquor unlawfully imported, transported, manufactured, sold possessed as well as any material, still, utensil etc. used for preparation or packaging of such intoxicant or liquor. The provision also allows any animal, vessel or vehicle found involved in illegal business of liquor inclusive of the premises within which, such act is being carried out, liable for confiscation. 7. Section 2(40) of 'the Act' defines intoxicant to mean liquor, spirit including silent spirit or Methyl Alcohol, or Ethanol, whether denatured or not, or any substance from which the liquor may be distilled and which is declared intoxicant by the State Government and includes any drug or medicinal preparation which is capable of being used or consumed as an intoxicant. 8. Section 2(44) defines 'liquor' to include all forms of country or traditional liquor, Indian Made Foreign Liquor or foreign made foreign liquor, be it of any kind. 9. 8. Section 2(44) defines 'liquor' to include all forms of country or traditional liquor, Indian Made Foreign Liquor or foreign made foreign liquor, be it of any kind. 9. No doubt Chowa(Kala gur) is the basic raw material, a mother tincture for preparation of spirit which in turn is capable of being used as an intoxicant of any nature described in Section 2(44) and may be, if the raiding party had come across any implement/machinery etc. which was capable of turning Chowa(Kala gur) into spirit, there would exist sufficient reason for the prosecuting party to move ahead but a mere possession of Chowa(Kala gur), mahua, rice, gur or grains at the hands of any person simplicitor, cannot be a reason for registering a case under 'the Act' or for prosecuting him or for drawing a confiscation proceeding until such time that the respondents are able to show that the Chowa(Kala gur) in question was to be used for the preparation of spirit, which is not the case rather it is simply proceeding on the disclosure so made by the arrested person with no accompanying circumstances existing which would confirm a valid seizure under 'the Act' that on mere recovery of Chowa(Kala gur) in possession of the brother of the petitioner, a police case was registered leading to registration of the confiscation case and ultimately order of confiscation passed. 10. The circumstances that we have noted is an illustration of the mechanical manner in which the act is being applied by the confiscating authorities without bearing notice to the accompanying circumstances and without applying their mind as to whether at all the seizure would invite a proceeding under 'the Act'. 11. Section 2(16) of 'the Act' defines country or traditional liquor and the legislature has been cautious enough to avoid any misuse of the provision by clarifying that it is only a seizure of plain or spiced spirit, whether made from Mahua, rice, gur, molasses or grains, which invites a seizure and consequently a confiscation and not Mahua, rice, gur, molasses or grains on its own and we further clarify that unless the circumstances on the spot were sufficient enough to confirm that the ‘Chowa’ seized, was to be converted into spirit or liquor, no seizure can take place. 12. 12. As we have observed the F.I.R. on record while confirming that the seizure was made on a public road, even the disclosure made by the person concerned did not lead to any such situation which could confirm to a valid seizure because nothing was found that on the spot that would take the allegation to its conclusion regarding preparation of spirit from the Chowa(Kala gur). 13. For the reasons and discussions above, the order of the confiscation dated 11.11.2017, in so far as it relates to the motorcycle bearing registration BR-21F4992 on the allegation of seizure of Chowa(Kala gur) from the rider of the motorcycle, cannot be sustained and is accordingly to that extent, set aside. 14. The writ petition is allowed. The order of the confiscating authority dated 11.11.2017 in Confiscation Case No. 68 of 2017 stands modified to that extent. 15. Let the vehicle in question be released in favour of the petitioner on production of the ownership papers.