Case Background
On 28.09.2022, Kuchaikot P.S. Case No. 438 of 2022 was registered on the written report of a police officer named in the FIR. The case was under Section 30(a) of the Bihar Prohibition and Excise Act, 2016 against five accused persons, including the driver and occupants of a Scorpio vehicle and the riders of an Apache motorcycle.
According to the written report, the police team was on evening patrolling and reached near Bhathawa Roop Pacchi Road More at about 6:30 pm. Two persons were seen coming on an Apache motorcycle with a big bag. A Scorpio vehicle was following the motorcycle. On seeing the police, the motorcycle allegedly tried to turn back and flee, but the driver of the Scorpio and both riders of the motorcycle were apprehended. One person from the Scorpio allegedly jumped into water and escaped.
On inquiry, the persons apprehended disclosed their names and, in the presence of two independent witnesses, a search was conducted. From the Scorpio vehicle (Reg. No. AS-09A-3885) cartons of “8 PM” foreign liquor (432 pieces of 180 ml, total 77.760 litres) were recovered. From a big bag lying on the seat of the Apache motorcycle bearing Reg. No. BR-28Z-8562, one carton of “8 PM” of 180 ml (48 pieces, 8.640 litres) was recovered. A seizure list was prepared, and the accused persons allegedly disclosed that they had purchased the liquor from Uttar Pradesh and were carrying it on the Scorpio and the motorcycle.
On this basis, confiscation (Excise) Case No. 1158 of 2022 was initiated by the District Magistrate-cum-Collector, Gopalganj. The matter was later transferred to the Sub-Divisional Magistrate, Gopalganj, and renumbered as Confiscation (Excise) Case No. 822 of 2022.
On 12.01.2023, the Sub-Divisional Magistrate, Gopalganj, passed an order in Confiscation (Excise) Case No. 822 of 2022, holding that the motorcycle was used for transportation of illicit liquor. The motorcycle was ordered to be confiscated under Section 56(d) of the Bihar Prohibition and Excise Act, 2016. It was further directed to be sold in public auction, with the sale proceeds to be deposited in the State Treasury.
The motorcycle owner, Amarjeet Yadav, challenged this before the Excise Commissioner, Patna, in Excise Appeal No. 12 of 2023. The appellate authority, however, upheld the order of the Sub-Divisional Magistrate. The owner then filed Excise Revision No. 13 of 2023 before the Additional Chief Secretary-cum-Principal Secretary, Department of Prohibition and Excise, Government of Bihar, Patna.
The revisional authority also dismissed the challenge and permitted the Sub-Divisional Magistrate to proceed with auction of the motorcycle. It held that the revisionist had failed to rebut the presumption under Section 32 of the Bihar Prohibition and Excise Act, 2016, and had not given a satisfactory explanation as to how the seized liquor was found in the vehicle. It further noted that 8.64 litres of liquor had been recovered and the police had rightly registered the criminal case under Section 30(a) and recommended confiscation and auction.
Aggrieved, the owner approached the Patna High Court in Civil Writ Jurisdiction Case No. 9517 of 2023 seeking quashing of the revisional order dated 13.04.2023, stay of the confiscation order dated 12.01.2023, and release of the seized motorcycle during pendency of the writ petition.
What the Court Examined and Decided
The Division Bench of the Patna High Court, comprising Hon’ble Mr. Justice P. B. Bajanthri and Hon’ble Mr. Justice Jitendra Kumar (authoring the judgment), focused on a simple but crucial question: was the motorcycle actually “used” in committing an offence under the Bihar Prohibition and Excise Act, 2016, and was the owner directly or indirectly involved?
The Court began by examining the statutory framework. It discussed several provisions of the Bihar Prohibition and Excise Act, 2016, including Sections 32, 47, 56, 57B, 58, 60, 61, 92, 93, and 95, along with Rules 12A and 13A of the Bihar Prohibition and Excise Rules, 2021.
Section 32 creates a presumption of guilt in certain situations and, in sub-section (3), deals with presumption against an owner where his vehicle or premises are used in commission of an offence. Section 47 provides punishment for a person having control over a house, premises, animal or conveyance who knowingly permits it to be used for commission of an offence under the Act. Section 56 enables confiscation of seized items, including vehicles, when an offence is committed.
Section 57B, inserted in 2022, allows the Collector to release a seized vehicle used for committing any offence on payment of penalty and, if the penalty is not paid, to proceed with confiscation under Section 58. Section 58 lays down the procedure for confiscation by the Collector, including the requirement to report seizure without delay, satisfaction of commission of an offence, and giving a reasonable opportunity of hearing to the person concerned before ordering confiscation or auction.
Rule 12A of the 2021 Rules explains how vehicles can be released on penalty and specifically states that, while imposing penalty, the authority must consider the involvement of the vehicle owner. Rule 13A explains the detailed procedure for confiscation: sending a proposal within 30 days of seizure, issuing show cause notice, obtaining reports, giving hearing to the owner and the investigating officer, and passing an order within 90 days if satisfied that an offence has been committed.
From this framework, the Court drew two key principles:
First, no vehicle can be seized or confiscated under the Bihar Prohibition and Excise Act, 2016 unless it has been used in the commission of an offence under the Act. For transport of illicit liquor under Section 30, the use of a vehicle for that transport is a necessary condition.
Second, mere physical use of the vehicle is not enough. There must also be involvement or connivance of the vehicle owner in such illegal use, either directly or indirectly. For this, the owner would normally be made an accused in the criminal case or be shown to have knowingly permitted such use, which is covered by Section 47.
The Court referred to an earlier judgment in Mohammad Basim Akram vs. State of Bihar [2022 (6) BLJ 540]. In that case, liquor had been found in the driver’s cabin for his personal consumption, without the owner’s knowledge. The Patna High Court had held that the vehicle could not be treated as used for transportation of illicit liquor, and hence it could not be confiscated.
The Bench then discussed typical situations where a vehicle is misused without the owner’s involvement, such as when a vehicle is stolen or robbed and used to carry liquor, or when a passenger in public transport or a train secretly carries contraband in his clothes or small bag. In such cases, even though liquor is physically present in the vehicle, the vehicle cannot be said to be “used” for conveying contraband in the legal sense, and the owner cannot be punished by seizure and confiscation.
The judgment emphasised that, where the owner is directly involved in prohibited use of the vehicle, he is made an accused in the criminal case. Even for indirect involvement by way of permission or connivance, he can be prosecuted under Section 47. Therefore, unless the owner is an accused in the case, the Court cannot conclude that he was directly or indirectly involved in prohibited use of the vehicle.
Turning to the facts of the present case, the Court carefully looked at the prosecution version concerning the motorcycle. The allegation was that two persons were riding the motorcycle; they were stopped, apprehended, and from the bag carried by the pillion rider, 8.64 litres of liquor were recovered.
Importantly, the liquor was not recovered from any part of the motorcycle itself. It was found in a bag carried in the hand of the pillion rider and merely lying on the seat. There was no allegation that the liquor was concealed in the dickey or any structural part of the bike.
The High Court held that, in these circumstances, it would be erroneous to treat the motorcycle as having been “used” to carry the contraband. The word “use” in the Act cannot be given an over-expansive meaning, because it has penal consequences and affects a constitutional right to property. The object and scheme of the Bihar Prohibition and Excise Act do not support such a wide interpretation.
Furthermore, the petitioner, who was the registered owner of the motorcycle, was not found riding the vehicle. The prosecution case itself did not allege that he was present at the spot, driving or sitting on the motorcycle. He was not made an accused in the FIR or in the criminal case. There was no allegation of his involvement or connivance.
The Court explained that the presumption under Section 32(3) against the owner of the vehicle can arise only when three conditions are met together: the owner is an accused in the case, the vehicle is held to be used in carrying contraband, and the owner fails to satisfactorily explain such use. In this case, none of these conditions were satisfied. The owner was not an accused, and the motorcycle itself was not legally used for transportation of liquor.
On these findings, the Court concluded that the two essential conditions for seizure and confiscation of a vehicle under the Bihar Prohibition and Excise Act, 2016 were missing: first, actual use of the vehicle for carrying or transporting liquor or intoxicant; and second, consent or connivance of the owner.
As a result, the seizure and confiscation of the motorcycle were held to be without authority of law. The Court further held that the orders of the authorities were arbitrary and violated Article 14 of the Constitution. They also infringed the petitioner’s constitutional right to property under Article 300A, which prohibits deprivation of property without authority of law.
The Court therefore quashed the order dated 13.04.2023 passed in Excise Revision No. 13 of 2023 by the Additional Chief Secretary-cum-Principal Secretary, Department of Prohibition & Excise, Government of Bihar. Consequentially, the Collector, Gopalganj, was directed to release the seized motorcycle forthwith.
Recognising the hardship caused, the Court also held that the petitioner, whose constitutional right to property had been violated and who had undergone harassment and expense in litigating the matter, was entitled to compensation. The District Collector, Gopalganj, was directed to pay Rs. 50,000 (Rupees Fifty Thousand only) to the petitioner within ten days from receipt of the order.
However, the Court clarified that the persons actually found in illegal possession of the liquor would remain liable to be prosecuted under the Bihar Prohibition and Excise Act, 2016.
Why This Judgment Matters
This judgment is very important for vehicle owners in Bihar, especially small owners whose vehicles are used by others. The Patna High Court has clearly said that the State cannot simply seize and auction a vehicle whenever liquor is found near it.
For confiscation, two things must be proved: the vehicle must actually be used for transporting liquor or intoxicant, and the owner must be directly or indirectly involved or at least be an accused in the case. If liquor is only found in a bag carried by a rider or passenger and there is no proof of the owner’s knowledge or consent, the vehicle cannot be legally confiscated.
The judgment also shows that courts are willing to protect the constitutional right to property under Article 300A and to grant compensation when the State acts without authority of law. It sends a message to police and excise officials that they must follow the law strictly while invoking confiscation powers under the Bihar Prohibition and Excise Act, 2016 and related Rules.
Legal Issues and Answers
- Issue: Whether the motorcycle, from which liquor was recovered from a bag carried by the pillion rider, was liable to seizure and confiscation under the Bihar Prohibition and Excise Act, 2016.
Answer: No. The Court held that the motorcycle was not “used” to carry contraband within the meaning of the Act, and there was no allegation or evidence of involvement or connivance of the owner. - Issue: Whether the presumption under Section 32(3) of the Bihar Prohibition and Excise Act, 2016 could be applied against the owner of the motorcycle.
Answer: No. The presumption arises only when the owner is an accused and the vehicle is held to be used in carrying contraband. Since the owner was not an accused and the vehicle itself was not used for transportation, Section 32(3) did not apply. - Issue: Whether the confiscation orders violated the petitioner’s constitutional rights under Articles 14 and 300A of the Constitution of India.
Answer: Yes. The Court found the orders arbitrary, lacking authority of law, and violative of the petitioner’s right to property, and therefore quashed them and awarded compensation.
Cases Cited by the Court
- Mohammad Basim Akram vs. State of Bihar, 2022 (6) BLJ 540 – relied upon to hold that a vehicle cannot be treated as transporting illicit liquor when liquor is carried by the driver for personal use without the owner’s knowledge.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 9517 of 2023
Case Title: Amarjeet Yadav vs. The State of Bihar & Ors.
Citation: 2024(2) PLJR 184
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice P. B. Bajanthri and Hon’ble Mr. Justice Jitendra Kumar
Date of Judgment: 30.01.2024
Advocates:
- For the Petitioner: Mr. Dhramveer, Advocate
- For the Respondents: Mr. Vikash Kumar, SC-11
Nature of the Case: Writ petition challenging confiscation and auction orders relating to a vehicle under the Bihar Prohibition and Excise Act, 2016.
Link to Judgment: Click here to access the official Patna High Court judgment
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