(1.) Heard learned counsel for the petitioner and learned counsel for the State.
Petitioner has prayed for the following reliefs: -
"For issuance of a writ in the nature of a writ of mandamus, or any other appropriate writ order, directing the respondents to forthwith release the Mahindra Bolero Pick Up of the petitioner bearing Registration No.BR32GB3413, Chassis No.MA1ZN2TNKL1K51295 and Engine No.TNL1K61457, which has been seized by the Respondents in connection with Bhairavsthan P.S.Case No.92 of 2021 dtd. 3/8/2021, instituted for the alleged violation of the provisions of IPC and Bihar Prohibition and Excise Act, 2016 and to act strictly in accordance with law."
Learned counsel for the petitioner prays that the petition be disposed of in terms of order dtd. 9/1/2020 passed in CWJC No. 20598 of 2019 titled as Md. Shaukat Ali Vs. The State of Bihar and subsequent order dtd. 14/1/2020 passed in CWJC No.17165 of 2019 titled as Umesh Sah Versus the State of Bihar and Ors. and order dtd. 29/1/2020 passed in CWJC No.2050 of 2020 titled as Bunilal Sah @ Munilal Sah.
Learned counsel for the respondents has no objection to the same.
(2.) 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. (Sec. 13).
In addition to the penalty imposed for committing such an offence, Sec. 56 of the Act lays down the procedure for confiscation of "things" used for in the commission of such an offence. The said Sec. 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."
Under sec. 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 Sec. 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 Sec. 92 and Revision under Sec. 93 of the Act; (e) proceedings initiated under Sec. 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.
In CWJC No.3245 of 2017 titled as Manish Kumar Chaudhary versus the State of Bihar and 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 dtd. 7/3/2017 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 the appeal within the statutory period as envisaged under Sec. 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 20/2/2020 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 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 and Ors. etc. Vs. Confederation of Indian Alcoholic Beverage Companies and 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 and Ors. this Court vide order dtd. 9/1/2020 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 Sec. 58 of the Act i.e. District Collector, in his/her office on 24/1/2020 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.
(3.) 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:- ;