BINAY KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsels for the parties. The present writ application has been filed for release of Honda Brio car of the petitioner, bearing Registration number BR-01BF 5261, seized in connection with Sonepur P.S. Case No. 281 of 2019, registered under Sections 37(b)(c) of Bihar Prohibition and Excise (Amendment) Act, 2016, as amended by Amendment Act 8 of 2018 (hereinafter referred to as 'the Act'). The relief(s), as stipulated in paragraph no.1 of the petition, read(s) as follows:-

(2.) It is submitted by learned counsel for the petitioner that the petitioner is the registered owner of the vehicle in question and the certificate of registration of the vehicle in question has been brought on record as contained in Annexure-1. This is an admitted position that no recovery of liquor or intoxicant was made from the vehicle in question. The seized vehicle is rotting under the open sky. It is further submitted that since there is no recovery from the seized vehicle nor the vehicle was being used for carrying liquor or intoxicant, hence it is not liable for confiscation under the provisions of Section 56 of the Act. It is further submitted that the FIR was lodged and the seizure has been made by ASI of Police, whereas Section 73(e) of the Act clearly mandates that the seizure cannot be made by an officer below the rank of Sub Inspector of Police. Hence, the very seizure appears to be de hors the provisions of the Act.Section 37 of the Act which has been amended by Amendment Act 8 of 2018, prescribes penalty for consumption of liquor. Section 37(b) of the Act prescribes for penalty to any person if he is found drunk or in a state of drunkenness at any place whereas Section 37(c) prescribes penalty if someone drinks and creates nuisance or violence at any place including in his own house. Section 37 of the Act reads as follows:

(3.) So far as the petitioner's information goes, the confiscation proceeding has not been initiated. A Division Bench of this Court while considering the case of drunken driving in the case of Diwakar Kumar Singh Vs. The State of Bihar and Ors., 2018(3) PLJR 403, held that it shall be mandatory for the confiscating authority to decide it as preliminary issue before passing final order in confiscation proceeding, when the person is found in drunken condition but no liquor is seized nor the vehicle is used for transportation of the liquor as to whether in such a condition the vehicle is liable for confiscation under Section 56 of the Act. Relevant portion of the order reads as follows: