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Punam Devi vs The State Of Bihar Through The … on 28 June, 2021

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IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8673 of 2021

Punam Devi Wife of Kashi Chaudhary @ Salendra Kumar Chaudhary,

Resident of Village-Baradih, P.S. Karakat, District-Rohtas at Sasaram.

… … Petitioner/s
Versus

1. The State of Bihar through the Principal Secretary Registration, Excise and

Prohibition Department, Government of Bihar, Patna.

2. The Principal Secretary, Registration, Excise and Prohibition Department,

Government of Bihar, Patna.

3. The District Magistrate cum Collector, Rohtas at Sasaram.

4. The Superintendent of Police, Rohtas at Sasaram.

5. The Station House Officer, Nokha Police Station, District-Rohtas at

Sasaram.

… … Respondent/s

Appearance :

For the Petitioner/s : Mr.Babu Nandan Prasad, Advocate
For the Respondent/s : Mr. Kumar Manish, SC-5

CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)

Date : 28-06-2021

Heard learned counsel for the petitioner and learned

counsel for the State.

Petitioner has prayed for the following reliefs: –
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“To issue an appropriate
writ(s)/order(s)/direction(s) in the nature of a writ
of mandamus direction the Respondent District
Magistrate to release the seized Vehicle (Tempu)
of the petitioner bearing its Registration No.BR-
24PA-2961, which has been seized by the police
officials under the Nokha P.S. Case No. 19/2020
dated 06.02.2020 registered punishable under
sections 341, 323, 498A, 504 of the I.P.C. and
309a), 37(b) (c) of Bihar Prohibition and
Excise
(Amendment) Act, 2018.”

Learned counsel for the petitioner prays that the

petition be disposed of in terms of order dated 9th January, 2020

passed in CWJC No. 20598 of 2019 titled as Md. Shaukat Ali

Vs. The State of Bihar and subsequent order dated 14th 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
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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.-
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.”

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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.

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)
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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.

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
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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
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
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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
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
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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
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
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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 thof
January, 2020, passed in C.W.J.C. No. 20598 of 2019,
titled as Md. Shaukat Ali Vs. The State of Bihar Ors.,
and the order dated 14thof 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.

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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
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.;

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(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.;

(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.

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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
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
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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
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 thof
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
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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
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
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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
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
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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.;

(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
Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
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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
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.

Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
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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
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
16thof 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
Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
19/24

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
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
Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
20/24

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
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 9thof 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,
Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
21/24

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,

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
Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
22/24

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

“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 available on 13.07.2021 at 10:30 A.M. before the

appropriate authority which may be in the attending facts, the

Collector of the Rohtas, Sasaram 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
Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
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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

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.

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.

Patna High Court CWJC No.8673 of 2021 dt.28-06-2021
24/24

Petition stands disposed of with the aforesaid

observations/directions.

(Sanjay Karol, CJ)

( S. Kumar, J)
Ashwini/-

AFR/NAFR
CAV DATE
Uploading Date 29.06.2021
Transmission Date

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