Bihar Prohibition and Excise Act, 2016 | Motorcycle Cannot Be Held To Have Been 'Used' To Carry Illicit Liquor If It Was Recovered From Person Riding It: Patna HC

The bench observed that the present case is a classic illustration of how the people are being harassed by concerned State officials in the name of the Bihar Prohibition and Excise Act, 2016.

It was further opined that the word ‘use’ cannot be given liberal or expansive meaning and has to be interpreted strictly as it has penal consequences. Pertinently, 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. ‘Use’ of the vehicle in transport of illicit liquor/intoxicant is sine qua non for its seizure and confiscation.

The question, therefore, before the court to adjudicate upon was whether the vehicle in question is liable to be seized and confiscated under the Bihar Prohibition and Excise Act, 2016.

Accordingly, while answering the aforesaid question in negative, a bench of Justice Jitendra Kumar and Justice P. B. Bajanthri observed, “…no intoxicant or liquor was recovered from the motorcycle of the petitioner. Only 180 ML liquor was recovered from ‘pant’ of the petitioner. In such situation, the motorcycle cannot be held to have been used to carry the illicit liquor which was recovered from the person of the petitioner. The word ‘use’ cannot be given liberal or expansive meaning. It has to be interpreted strictly as it has penal consequences. But the confiscation authority confiscated the vehicle in question by the impugned order. Even the Appellate Authority did not correct the wrong and upheld the confiscation order. Even the Revisional Authority did not do full justice, directing release of the vehicle only after payment of 50% of the insurance value of the motorcycle. Hence, the petitioner was constrained to move this Court incurring further expense on litigation. This case is a classic illustration of how the people are being harassed by concerned State officials in the name of the Bihar Prohibition and Excise Act, 2016”.

Therefore, while quashing the impugned order passed by the District Collector and further directing him to release the motorcycle, directed to pay Rs. 1,00,000/- (Rupees One Lac) to the Petitioner towards compensation. “…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”, the bench further observed.

As per the facts of the case, 13.900 L of Indian Made Foreign Liquor were seized by the Police from the two accused’s bag on search. On query, it was also stated by one accused that the alleged motorcycle is registered in the name of his wife, who subsequently, moved the Court.

Pursuant to which, the High 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".

In pursuance to the said order of the High Court, the petitioner approached the District Magistrate. The District Magistrate through the impugned order held that the confiscation proceeding has already been started with regard to the vehicle in question and the same was concluded on February 25, 2021 and therefore, it would not be appropriate to again pass any order.

It was thus argued by the petitioner 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. Section 56 of the Act was referred to as it stood prior to its amendment in 2022 and that the alleged offence was committed on September 17, 2020. Section 57 B, Section 58 of the Act and Rule 12A of the Bihar Prohibition and Excise Rules 2021 were further referred to.

It was further submitted that as per the prosecution case itself, 13.9 L 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 motorcycle.

It was further submitted that the owner of the vehicle, was the wife of the petitioner herein, was 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.

Accordingly, after perusing the relevant facts and circumstances, the bench further observed, “…we find that the twin prerequisites for seizure and confiscation of a vehicle under the Bihar Prohibition and 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”.

Appearance: For the Petitioner- Mr. Diwakar Prasad Singh, Advocate

For the Respondent- Mr. Vivek Prasad, GP-7 Ms. Supragya, AC to GP-7

Cause Title: Binit Kumar v. The State of Bihar through the Principal Secretary Department of Excise and Prohibition Bihar

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