AMIT KUMAR SINGH Vs. STATE OF BIHAR
LAWS(PAT)-2022-3-31
HIGH COURT OF PATNA
Decided on March 31,2022

AMIT KUMAR SINGH Appellant
VERSUS
STATE OF BIHAR Respondents

JUDGEMENT

- (1.) Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has prayed for the following reliefs: - "That this is an application for issuance of a writ in the nature of mandamus, or any other appropriate writ, order, directing the respondents to forthwith release the Hero Super Splendor of the petitioner bearing Regd. No.BR19S 4388, Chasis No. MBLJAW17XMGD14769, Engine No. JA07ABMGD15970 which has been seized by the respondents in connection with Lakhnaur R.S. O.P. P.S. Case no.194 of 2021 dtd. 21/10/2021 instituted for the alleged violation of the provisions of IPC and Bihar Prohibition and Excise Amendment Act, 2018 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. 2.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. 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:-
(3.) The expression "reasonable delay" used in Sec. 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 and Ors. by this Court vide order dtd. 14/1/2020. 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 and Ors. vide order dtd. 29/1/2020 by recording the entire history, directed the State to file an affidavit as to why proceedings for contempt be not initiated. Such order dtd. 29/1/2020 in toto reads as under:- "It is seen that despite our order dated 9thof 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 Sec. 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 dtd. 9/1/2020) "The petition filed on 1/10/2019 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. ;


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