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2020 DIGILAW 68 (PAT)

Sanjit Yadav @ Sanjeet Yadav v. State of Bihar

2020-01-16

BIRENDRA KUMAR

body2020
ORDER Heard the parties. 2. A motorcycle bearing registration no.BR07X-3496 and a scooty bearing registration no.BR07AC-6830 of the petitioner were seized from a hut and therefrom liquor was also seized and it was suspected that the two vehicles were to be used for transportation of the liquor. 3. For the occurrence aforesaid, Bahadurpur P.S.Case No.68 of 2018 under Sections 30(a), 32(2) and 41 of the Bihar Prohibition and Excise Act, 2016. 4. By the impugned order dated 14.06.2019 passed in Excise Confiscation No.147 of 2018, the Collector, Darbhanga has confiscated both the vehicles without coming to a definite conclusion that the vehicles were used for the purpose of carrying the liquors. The power was exercised by the Collector under Section 58 of the Bihar Prohibition and Excise Act, 2016 and in spite of objection of the petitioner that there was no material to substantiate that the vehicles were used for carrying liquors or were to be used for carrying liquors the seizure of the vehicle as well as confiscation proceeding are vitiated in law as it is in flagrant violation of statutory provisions of Bihar Prohibition and Excise Act, 2016 and Division Bench Judgment of this Court in an identical matter in CWJC No.5049 of 2018 disposed of on 22.03.2018. 5. While allowing the aforesaid writ application, the Division Bench has observed as follows:— “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. 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. 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 therefore, if we find that the District Magistrates are passing confiscation order without addressing this issue first, we may consider imitating contempt proceedings against the concerned District Magistrate.” 6. Section 56 of the Bihar Prohibition and Excise Act, 2016 mentions the things which are liable to confiscation under the Act and one of the item is 56(d) “any animal vehicle vessel or other conveyance used for carrying the same”. The impugned order would reveal that there is no averment in the FIR or anywhere that the confiscated vehicle was used for the purpose nor the Collector while confiscating the two vehicles examined the applicability of Section 15 of the Act in the light of judgment dated 22.03.2018 (supra). 7. The provision of appeal to the State Government under Section 92 of the Act against the impugned order would not come in the way of exercise of jurisdiction under Articles 226 and 227 of the Constitution of India when the authority has acted, against the mandate of the law as well as judicial pronouncement, flouting the procedure prescribed. 8. Learned counsel for the state does not dispute the legal issue involved in the case. 9. Hence, the impugned order is hereby quashed and it is directed that the referred vehicles be released and handed over to the petitioner immediately and if the same had already been sold, the actual price on the date of seizure should be paid to the petitioner. 10. Let a notice be issued against respondent nos.2 and 4 as to why they should not punished for contempt of order of this Court dated 22.03.2018 passed in CWJC No.5049 of 2018. A separate Miscellaneous jurisdiction case be registered for the purpose.