Pat HC | “Docket of Court is now choked solely on account of such legislation”; HC passes strict directives to complete proceedings under Bihar Prohibition & Excise Act within 90 days

Patna High Court: The Division Bench of Sanjay Karol, CJ., and S. Kumar, J., passed strict directives to complete proceedings under Section 58 of Bihar Prohibition and Excise Act, 2016 within a period of ninety days from the date of appearance of the parties.

The Bihar Prohibition and Excise Act, 2016 (Act, 2016) 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 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.

Further, 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.

Noticeably, the Court had been flooded with several petitions solely on account of non-initiation of such proceedings of confiscation or passing of illegal orders with respect thereto and also, on account of lack of parties pursing the remedies so provided under the Act, consequently, the Court was faced with following situations:-

1. Where despite seizure, no proceedings for confiscation under Section 58 were initiated;
2. Where such proceedings were initiated but not concluded within a reasonable time;
3. Where 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;
4. 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;
5. Where 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) or on account of non-cooperation of the private parties, be it for whatever reason.

In Md. Shaukat Ali v.  State of Bihar, (2020) 3 PLJR 927, the Court had issued the following directions to address the issues mentioned above: –

1. The appropriate authority shall positively conclude the confiscation proceeding within next thirty days on appearance of the petitioner.
2. If for whatever reason, such proceeding could not 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.
3. If eventually, the appropriate authority arrives at a conclusion that the property was 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.

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.”

In Bunilal Sah v. State of Bihar, (2020) 3 PLJR 935, the Court took notice of non-compliance of its orders by the authority concerned and had asked the State to file an affidavit as to why proceedings for contempt be not initiated. The Bench had noticed,

“It is seen that despite our order in Md. Shaukat Ali v. State of Bihar, (2020) 3 PLJR 927, and in Umesh Sah v. State of Bihar, (2020) 3 PLJR 931, 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. 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.” 

Again in Diwakar Kumar Singh v. State of Bihar, 2018 SCC OnLine Pat 462, the Court directed the confiscating authority to take not of the provisions of Section 56 of the Act, 2016 and record a positive finding after hearing the petitioner as to whether when the petitioner was found or the vehicle was found to be used by a person in drunken condition and no liquor was seized from the vehicle or when the vehicle was not used for transportation of liquor, whether the provision of Section 56 of the Act would apply. The Bench stated that 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.

Hence, noticing that in large number of cases, position about the conclusion of the proceedings, be it under Section 58, 92 or 93 remains the same, the Bench directed that all proceedings under Section 58 must positively be initiated/concluded within a period of ninety days from the date of appearance of the parties. Further, the Bench directed:

1. 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.
2. 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.
3. The Bench clarified that convenience of parties, especially 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.

The Court further directed that 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. Lastly, the Bench stated that if the authorities concerned fail to take appropriate action at the earliest and in accordance with law, within the time schedule, the vehicle/property/things liable for confiscation shall be deemed to have been released without any further reference to this Court. [Abhishek Kumar v. State of Bihar, 2021 SCC OnLine Pat 1301, decided on 01-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance:

For the Petitioner/s: Mr Arbind Kumar Singh, Advocate

For the Respondent/s: Mr Kumar Manish, SC-5