IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.7920 of 2023

======================================================
Sunaina

... ... Petitioner/s

Versus
1. The State of Bihar through the Commissioner, Excise, Government of Bihar,
Vikash Bhawan, Patna.
2. The Collector, Gopalganj.
3. The Superintendent of Police, Gopalganj.
4. The Excise Inspector, Prohibition, Gopalganj.
5. The Station House Officer, Kucayacot Police Station, Gopalganj.

... ... Respondent/s

======================================================
Appearance :
For the Petitioner/s : Mr. Bhola Kumar, Advocate
For the Respondent/s : Mrs. Shama Sinha, SC-5
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : 30-01-2024

The present writ petition has been filed by the petitioner

seeking following reliefs:-

"A. For issuance of a Writ of certiorari quashing the

order dated 19.11.2021 passed by the Collector, Gopalganj
in Confiscation (Excise) Case No. 700/2020 whereby he
has declined to release the said Motorcycle
B. For directing the Collector, Gopalganj to release
the Motorcycle bearing registration no.
Passion Pro which is lying in the Kuchyacot Police
Station, Gopalganj in the favour of the petitioner
forthwith.
C. For passing any other suitable Order/s,
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appropriate Writ/s or direction/s which Your Lordships

deem fit and proper in the facts and circumstances of the
instant case."

2. The relevant facts of the case, as emerging from the

record, are that on 17.09.2020, Excise Case No. 253 of 2020

was lodged against two accused persons, namely, Satyendra

Kumar and Sunil Yadav alleging that both the accused were

riding a motorcycle bearing Registration No. on

N.Η.-28. When they were stopped by the police, 13.900 litres of

Indian Made Foreign Liquor were seized from the bag on

search. The bag was kept in the hand of accused Sunil Yadav,

who was sitting as a pillion. On query, it was also stated by

accused Satyendra Kumar that the alleged motorcycle is

registered in the name of his wife, Sunaina Devi, who,

subsequently, moved this Court in C.W.J.C. No. 15051 of 2021,

wherein, this Court passed the following order.

"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"

3. In pursuance to the aforesaid order of this Court, the

petitioner approached the District Magistrate, Gopalganj.

However, vide impugned order dated 19.11.2021, passed in

Confiscation (Excise) Case No. 700 of 2020, the District

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Magistrate, Gopalganj, held that the confiscation proceeding

has already been started with regard to the vehicle in question

and the same was concluded on 25.02.2021 and hence it would

not be appropriate to again pass any order. However, he

suggested the petitioner to file an appeal against the order.

4. Being aggrieved by the impugned order, the present

writ petition has been preferred by the petitioner.

5. Ld. Counsel for the Petitioner submits that the

impugned order has been passed by the Confiscating Authority

without any authority of law and in violation of Article 300 A

of the Constitution. He further submits that for seizure and

confiscation of any vehicle under the Bihar Prohibition and

Excise Act, 2016, the vehicle is required to be used in

commission of any offence under the Act with involvement of

the owner of the vehicle. He refers to Section 56 of the Act as it

stood prior to its amendment in 2022. The alleged offence has

been committed on 17.09.2020. He refers to Section 57 B,

Section 58 of the Act and Rule 12A of the Bihar Prohibition

and Excise Rules 2021. He further submits that as per the

Prosecution case itself, 13.9 liter illicit liquor was recovered

from the pillion rider of the motorcycle from his bag kept in his

hand. It was not recovered from the dickey or any part of the
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motorcycle. In such situation, it does not lie in the mouth of the

Respondents to say that the motorcycle was used to carry the

contraband.

6. Ld. Counsel for the Petitioner further submits that the

owner of the vehicle, who is Petitioner herein, is also no way

involved in the alleged offence, because even as per the

prosecution case, she was neither driving the motorcycle nor

sitting on the motorcycle, nor is case of the police that she

being the owner of the motorcycle, is involved by way of

consent for or connivance in use of the vehicle in commission

of any offence. That is why she has not been made accused in

the criminal case as registered by the police under the Act. As

such, the vehicle has been seized and confiscated by the

authorities without any authority of law.

7. Per contra, Ld. Counsel for the Respondents defends

the impugned order submitting that as per the facts and

circumstances of the case and the provisions of the Act, the

vehicle in question is liable to be seized and confiscated.

However, the vehicle has not been auction sold till date as

stated in the counter affidavit.

8. In view of the aforesaid facts and circumstances and

rival submissions of the parties, the legal question which arises

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for consideration by this Court is whether the vehicle in

question is liable to be seized and confiscated under the Bihar

Prohibition and Excise Act, 2016.

9. Before we consider the rival submission of the parties,

it would be imperative to refer to the relevant statutory

provisions and case laws:-

10. Sections 47, 56, 57B, 58, 61, 92, 93, 95 of the Bihar

Prohibition and Excise Act, 2016 and the Bihar Prohibition and

Excise Rules, 2021 are relevant statutory provisions in the

aforesaid facts and circumstances.

11. Section 47 provides for liability of the person who is

under control of the vehicle knowingly permits it to be used for

commission by any other persons of an offence punishable

under provision of the Excise Act to punishment in the same

manner as if he had himself committed the said offence. It

reads as follows:-

“47. Penalty for allowing premises, etc., to be used

for commission of an offence:- Whoever, whether being
a licensee under this Act or otherwise, and having the
control or use of any house, room, enclosure, space,
animal or conveyance, knowingly permits it to be used for
commission by any other person of an offence punishable
under any provision of this Act, shall be punishable in the
same manner as if he had himself committed the said
offence.”

12. Section 56 of the Act provides for liability of

seized vehicles, amongst other seized items, for confiscation. As

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per this Section, as it stood prior to amendment in 2022, vehicle

used for carrying any intoxicant or liquor is liable for

confiscation. The pre-amendment provision of Section 56 is

relevant because alleged offence has been committed by the

petitioner on 17.09.2020. Section 56 , as stood prior to

amendment in 2022, reads as follows:-

“56. Things liable for confiscation.- Whenever an

offence has been committed, which is punishable under
this Act.-
(a) any intoxicant or liquor unlawfully imported,
transported, manufactured, sold, stored, possessed,
material, utensil, implement, apparatus, package or
covering and or the other contents, if any, of such
receptacle, package or covering for the purposes of
storing, manufacturing or labelling such intoxicant or
liquor;
(b) any animal, vehicle, vessel or other conveyance used
for carrying any intoxicant or liquor; or
(c) 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;
shall be liable to be confiscated in a manner prescribed
under the provisions of the Act,
(d) The State Government, if deem necessary, may issue
necessary directions, guidelines, Regulations and
instructions with respect to mode and manner of search,
seizure and confiscation."
(Emphasis supplied)

13. Section 57B as inserted in 2022, by way of

amendment, provides that any vehicle used for committing any

offence punishable under the Prohibition and Excise Act and

having been seized by any police officer or Excise Officer may

be released by the Collector upon payment of such penalty as

may be notified by the State Government. This Section is

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applicable to all pending confiscation proceedings by virtue of

Explanation no.2. This Section reads as follows:-

“57B. Things or premises liable to be released upon

penalty.-(1) Any animal, vehicle, vessel or other
conveyance used for committing any offence punishable
under this Act that has been seized by any police Officer
or Excise Officer may be released by the Collector upon
payment of such penalty as may be notified by the State
Government.
(2) Any premises or part thereof used for committing any
offence punishable under this Act that has been seized by
any police Officer or Excise Officer may be released by
the Collector upon payment of such penalty as may be
notified by the State Government.
(3) If the person concerned does not pay the penalty, then
the Collector shall proceed to confiscate the said animal,
vehicle, vessel or other conveyance and premises as per
section-58.
Explanation 1.- It shall not be a right of the accused to get
his conveyance, item or premises released upon payment
of the required penalty. The Collector, based upon a report
by a police officer or an excise officer, may, for reasons to
be récorded in writing, still refuse to release the said
conveyance, item or premises and proceed ahead with
confiscation and auction/destruction.
Explanation 2.-The Collector shall, from the date of this
Amendment coming into force, close the on-going
confiscation proceedings if the person concerned pays the
penalty as notified and release such vehicle, conveyance
or premises.
Explanation 3.-Such release shall not affect the outcome
of trial, if any before the Special Court.”

(Emphasis supplied)

14. Section 58 of the Act provides for the procedure

and conditions for confiscation of the vehicle or conveyance and

other things by District Collector or Officer authorized by him.

As per Sub-section 1 of Section 58, the officer seizing the

vehicle is required to report to the District Collector without any

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reasonable delay and as per Sub-Section 2 if the Collector is

satisfied, as per the report, that an offence under this act has been

committed, he is authorized to confiscate the vehicle, but, as per

Sub-section 3, only after giving reasonable opportunity to the

person concerned for hearing. Section 58 reads as follows:-

“58. Confiscation by District Collector.-(1)

Notwithstanding anything Contained in this Act or any
other law for the time being in force, where anything
liable for confiscation under this Act is seized or detained
under the provisions of this Act, the officer seizing and
detaining such property shall, without any reasonable
delay submit a report to the District Collector who has
jurisdiction over the said area;
(2) On receipt of the report under sub-section (1), the
District Collector if satisfied that an offence under this Act
has been committed, may, whether or not prosecution is
instituted for the commission of such an offence and
whether or not a case is pending before any court, order
confiscation of such property;
(3) The Collector shall, before passing an order under sub-
section (2), give a reasonable opportunity to the person
concerned, of being heard;
(4) While making an order of confiscation under sub-
section (2), the District Collector may also order that such
of the properties which the order of confiscation relates,
which in his opinion cannot be preserved or are not fit for
human consumption, be destroyed. Whenever any
confiscated article has to be destroyed in conformity with
these provisions, it shall be destroyed in the presence of a
Executive Magistrate or officer ordering the confiscation
or forfeiture, as the case may be, or in the presence of the
Excise Officer not below the rank of a Sub-Inspector;
(5) While making an order of confiscation under sub-
section (2), if the District Collector is of the opinion that it
is expedient in the public interest to do so, he may order
the said property or any part thereof to be sold by public
auction or dispose of departmentally and proceeds
deposited with the State Government,
(6) The District Collector shall submit a full report of all
particulars of confiscation to the Commissioner of Excise
within one month of such confiscation.”
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(Emphasis supplied)

15. Section 61 provides that when an order for

confiscation of any property, which includes vehicle also, has

been passed under section 58 of the Bihar Prohibition and Excise

Act, 2016 and such order has become final, the property gets

vested in the State Government free from any encumbrance.

Section 61 reads as follows:-

“61. Confiscated articles to vest with the Collector.-

When an order for confiscation of any property has been
passed under Section 58 and such order has become final
in respect of the whole or any portion of such property,
such property or portion thereof, as the case may be, shall
vest with the State Government free from any
encumbrance.”

16. Section 92 provides for departmental appeal

against the final orders passed by the authorities under the Act.

The order passed by Excise Officer, lower in rank than District

Collector, is appealable to District Collector within 60 days,

order passed by District Collector is appealable to Excise

Commissioner and order passed by Excise Commissioner is

appealable to the State Government within 90 days. However, no

second appeal is provided against an order passed by Excise

Commissioner. Section 92 reads as follows:-

“92. Appeals.-(1) All final orders passed by any Excise

Officer other than the Excise Commissioner or Collector
under this Act, shall be appealable to the Collector within
sixty days from the date of the order.
(2) All final orders passed by the Collector and Excise
Commissioner shall be appealable to the Excise
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Commissioner and the State Government respectively

within ninety days from the date of the order complained
of. Provided that no second appeal shall lie against an
order passed by the Excise Commissioner on appeal.
(3) The State Government may make rules in this behalf.”

17. Section 93 provides for departmental revision. The

revisional power has been vested with the State Government.

Section 93 reads as follows:-

“93. Revision.- The State Government may, on its own

motion or on an application made to it, call for and
examine the records of any proceeding before any excise
officer or any document, including that relating to renewal
or refusal of license or grant of permit, pass etc. under this
act, for the purpose of satisfying itself as to the correctness
and legality of any order passed in, and as to regularity of
any such proceeding and may, when calling for such
record, direct that the order be not given effect till the
pendency of the examination of the record, so called for.
After examining the record, the State Government may
annul, reverse, modify or confirm such order, or pass such
other order as it may deem fit.”

18. Under Section 95 of the Bihar Prohibition and

Excise Act, 2016, the Bihar Government is empowered to make

rules to carry out the purposes of the Act. Bihar Prohibition and

Excise Rules, 2021 has been made by Bihar Government under

Section 95 of the Act. Rule 12A, as inserted in 2022 by way of

amendment, provides for release of vehicle, conveyance etc. on

payment of penalty. This Rule is applicable to all pending

confiscation/auction proceedings by virtue of its Explanation.

This Rule reads as follows:-

“12A. Release of Vehicles, Conveyance etc. on

Payment of Penalty.- (1) If any vehicles, conveyance,
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vessel, animal etc. has been seized by any police or excise

officer under the Act, then in terms of Section 57B (1) of
the Act, the Collector or an officer authorized by him upon
receipt of an application in Form IV by the owner of the
said conveyance or vehicle etc., may release the said
conveyance or vehicle upon payment of such penalty as
may be ordered by the Collector or the officer authorized
by him.
Provided, where it is not possible to ascertain the owner of
the vehicle or the owner is not coming to claim the
vehicle, the Collector or the officer authorized by him,
after waiting for 15 days from the date of seizure, shall
proceed to confiscate and auction the vehicle as per the
provisions of the Act.
(2) The amount of penalty shall be as decided by the
Collector or the Officer authorized by him. While
imposing the penalty, he shall have due regard to the
quantity of intoxicant recovered, involvement of the
vehicle owner and the latest insurance value of the
vehicle. In no case, the penalty should be less than 10% of
the insured value of the vehicle and more than Rs. 5 lakhs.
The insured value is the value of the vehicle as assessed
by the insurance company. Where, the insured value is not
available or the Collector or the Officer authorized by him
has reason to believe that the vehicle is undervalued, he
shall get the valuation done by the District Transport
Officer. In any case, the Collector shall not wait beyond
15 days from the date of seizure and if during this period,
the accused/owner does not pay up the penalty, he shall
proceed with the confiscation/auction."
(3) Notwithstanding above, if on a report by police officer
or excise officer, the Collector or the officer authorized by
him is satisfied that releasing the vehicle or conveyance
shall not be in the public interest, he shall proceed ahead
with the confiscation of the said vehicle or conveyance
and its subsequent auction/disposal.
(4) Where the conveyance is such that its
valuation/insurance is not possible, the Collector or the
officer authorized by him shall impose such fine as he
deems fit. While imposing such fine, the Collector or the
officer authorized by him shall have due regard to the
economic status of the individual, nature of his
involvement in the crime and the quantum of intoxicant
recovered.
(5) Such penalty shall be, regardless of the outcome of the
trial if any, before the Special Court, non-refundable.
(6) The owner of the vehicle/conveyance shall, after the
release of the vehicle/conveyance, produce the
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vehicle/conveyance as and when required by the

authorities.
Explanation. In all pending/ongoing cases of
confiscation/auction of vehicles, the Collector or the
officer authorized by him may give an opportunity to the
existing owner to pay the aforesaid penalty and get the
vehicle released. Upon satisfaction about ownership and
upon payment of such penalty, the ongoing
confiscation/auction proceeding may be dropped and the
vehicle released.”

(Emphasis supplied)

19. The bare reading of Section 56(b) of the Act

clearly shows that any vehicle or conveyance can be seized and

confiscated under the Bihar Prohibition and Excise Act, 2016

only when the vehicle has been used for carrying any intoxicant

or liquor. Section 58(3) of the Act provides that during

confiscation proceeding, the owner of the vehicle has to be given

opportunity of being heard. Section 57 B(1) also provides that

any vehicle, or other conveyance used for committing any

offence punishable under the Act and seized may be released

upon payment of penalty. Rule 12-A(2) of the Bihar Prohibition

and Excise Rules, 2021 also provides that while imposing

penalty under Section 57-B of the Act, the authority concerned

is required to give due regard to the involvement of the vehicle

owner.

20. The first and foremost thing, which emerges from

the aforesaid discussion of the statutory provisions, is that no

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vehicle can be seized or confiscated without its use in

commission of any offence under the Bihar Prohibition and

Excise Act, 2016. Under Section 30 of the Act, transport of illicit

liquor or intoxicant is an offence and in commission of such

offence, a vehicle can be used. As such, use of the vehicle in

transport of illicit liquor/intoxicant is sine qua non for its seizure

and confiscation. It also emerges that just use of the vehicle to

carry intoxicant or liquor is also not sufficient for its seizure and

confiscation. The involvement or connivance of the owner of the

vehicle in such illegal use of the vehicle is also an essential

prerequisite for confiscation of the vehicle or imposing any

penalty for release of the vehicle. Such view has been

consistently expressed by this Court in various judicial

pronouncements under writ jurisdiction.

21. It has been held by this Court in Mohammad

Basim Akram vs. State of Bihar [2022 (6) BLJ 540] that when

the driver of a vehicle is found to be carrying some quantity of

intoxicant or liquor in the vehicle for his personal consumption

without any knowledge of the owner of the vehicle, such vehicle

cannot be construed of having indulged in transportation of illicit

liquor. The facts of the case was that 8.8 litre illicit liquor was

recovered from the cabin of the driver and driver had confessed
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that he had purchased the contraband for his personal

consumption and kept in the cabin.

22. There is also a possibility of situation where driver

of a motorcycle or car or other vehicles may be carrying small

quantity of contraband in his clothes like in pocket of shirt or

pant. In such situation also, it would be completely erroneous to

hold that vehicle was being used for carrying the contraband.

Hon’ble High Court of Kerala in Wilson C.C. Vs. State of

Kerala [2022 LiveLaw (Ker) 627] has expressed similar view.

In that case, a person was driving a vehicle and 0.06 grams of

LSD Stamp was recovered from wallet kept in his pocket.

Hon’ble Kerala High Court held that it could not be said that

the vehicle was used for conveyance of the contraband and the

vehicle is subject to confiscation. In Thausif Ahammad Bengre

Vs. State of Kerala [MANU/KE/0426/2018] the vehicle was

being driven by the driver and 40 grams Ganja was recovered

from his possession. In that situation, Hon’ble Kerala High

Court held that it is really fallacious to contend that the vehicle

was used for carrying the contraband.

23. It is relevant to point out that in case of direct

involvement of the owner of the vehicle in prohibited use of the

vehicle, he is made accused in the criminal case registered by the

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police. Even in case of his indirect involvement by way of

permission for or connivance in use of his vehicle in commission

of the offence, he is liable to be accused under Section 47 of the

Act. As such, unless the owner of the vehicle is an accused in the

case , the court can not hold that the owner of the vehicle is

directly or indirectly involved in the prohibited use of the

vehicle.

24. It is also pertinent to note that in the light of

various pronouncements of this Court, Bihar Government has

issued letter dated 07.02.2020 bearing Letter No. 13/HC-06-

55/2020-670. The letter has been written by Additional Chief

Secretary, Home Department cum Prohibition, Excise and

Registration Department to all District Collectors, Police

Officers and Excise Officers. By this letter, the Government has

clearly stated in para-2 of the letter that as per direction of this

Court, such vehicle, from which no liquor has been recovered,

will not be confiscated. In para-3 of the letter, the Government

has stated that when the vehicle was being driven by the driver

in drunken condition but no liquor has been recovered from the

vehicle, only the driver would be prosecuted under the Bihar

Prohibition and Excise Act, 2016.

25. Coming to the case at hand we find that on

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17.09.2020, the accused Satyendra Kumar and Sunil Yadav

were allegedly riding the motorcycle in question and on search

13.9 liter illicit liquor was seized/recovered from the bag kept

by the pillion rider, Sunil Yadav in his hand. There is no

allegation, as emerging from the FIR, that the contraband was

kept/concealed in any part of the motorcycle in question to

carry it. In such situation, it would be erroneous to hold that the

motorcycle was used to carry the contraband. The word “use”

cannot be interpreted liberally giving expansive meaning. It has

to be interpreted strictly as it has penal consequences. Even the

object and scheme of the Bihar Prohibition and Excise Act does

not warrant expansive interpretation. At most, the persons who

were found in illegal possession of the contraband may be

prosecuted for offence as committed under the Act.

26. We also find that against the petitioner/owner of the

vehicle there is no allegation of her direct or indirect

involvement in commission of the alleged offence. That is why

she has not been made accused in the criminal case registered

by the police.

27. In view of the aforesaid facts and circumstances of

the case, we find that the twin prerequisites for seizure and

confiscation of a vehicle under the Bihar Prohibition and

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Excise Act , 2016 – use of the vehicle in carrying / transporting

the liquor or intoxicant and the consent or connivance of the

owner of the vehicle in commission of the offence - are not

fulfilled. Consequently the vehicle in question is not liable to

be seized and confiscated under the Act.

28. Hence, the impugned order is arbitrary and hit by

Article 14 of the Constitution. It is also violative of

Constitutional right of the petitioner to hold property as

provided in Article 300 A of the Constitution, which prohibits

any deprivation of property without authority of law. The Bihar

Prohibition and Excise Act no way authorises the official to

seize or confiscate the motorcycle in the alleged facts and

circumstances of the case. Hence, the seizure and confiscation

of the motorcycle in question is without any authority of law.

The confiscation order, is accordingly liable to be quashed. The

petitioner, whose constitutional right to property has been

violated, is entitled to adequate compensation. He is also

entitled to compensation on account of expenditure and

harassment in course of forced litigations.

29. Hence, the impugned order dated 19.11.2021 passed

by the District Collector, Gopalganj in Confiscation (Excise)

Case No. 700/2020 is quashed. The District Collector,

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Gopalganj is also directed to release the motorcycle in question

forthwith. He is further directed to pay Rs. 1,00,000/- (Rupees

One Lac) to the Petitioner towards compensation. The payment

of the compensation must be made within ten days of the

receipt of the order.

30. The petition is allowed, accordingly.

(Jitendra Kumar, J.)

I Agree.

S.Ali/Ravishank (P. B. Bajanthri, J.)

ar/Chandan/-

AFR/NAFR AFR
CAV DATE 01.08.2023
Uploading Date 30.01.2024
Transmission Date