SANTOSH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In the instant petition, the petitioner has prayed for the following reliefs:-

(2.) Briefly stated facts of the case is that 160 litres of spirit and 13.125 litres of foreign liquor alongwith other preparatory materials used for manufacturing liquor as well as other articles were recovered from the house of the petitioner. On the basis of alleged recovery, police instituted a case bearing Bihar P.S. Case No. 667 of 2021 for the offences punishable under Ss. 30(a)(c)(d), 32(3), 33, 36, 41(1), 44 of Bihar Prohibition and Excise Act, 2018.

(3.) Learned counsel for the petitioner submitted that on account of recommendation of Superintendent of Police, Nalanda (respondent no. 4), Confiscation Case No. 564 of 2021 was initiated and notice was issued to the petitioner. On receipt of notice, petitioner appeared through his counsel and filed his show cause submitting that nothing was recovered from first and second floor of the house of the petitioner. It is also submitted that ground floor as well as Karkat House situated at North-East side of the premise of the petitioner had been leased out to one Karu Choudhary but the Respondent No. 3 (Additional Collector -cum-Additional District Magistrate, Nalanda) did not consider the show-cause of the petitioner and passed the order dtd. 18/12/2021 in Confiscation Case No. 564 of 2021 by confiscating the entire three storey house of the petitioner as well as the land in question under the premise of the petitioner and entire house of the petitioner was put on auction sale. He further submitted that petitioner preferred one writ application bearing C.W.J.C. No. 1701 of 2022 praying for setting aside the aforesaid confiscation order and further to release/unseal the house of the petitioner and the said writ petition was disposed of on 22/4/2022 with liberty to the petitioner either to avail the remedy of appeal before the appellate authority or to get his/her house unsealed after making payment of penalty in terms of Rule 12B inserted by amending Bihar Prohibition and Excise Rules, 2021. He further submitted that pursuant to the order passed in C.W.J.C. No. 1701 of 2022, the petitioner filed an application before the Respondent No. 3 (Additional Collector -cum- Additional District Magistrate, Nalanda) on 17/5/2022 alongwith duly filled prescribed Form V under Rule 12B of Bihar Prohibition and Excise (Amended) Rules, 2022 to get his house and premises unsealed upon deposit of penalty/fine but the same was rejected by the respondent no. 3 vide order dtd. 2/6/2022 by maintaining his earlier order dtd. 18/12/2021 without appreciating the facts and circumstances of the case. He further submitted that being aggrieved by the order dtd. 2/6/2022 passed by the respondent no. 3, the petitioner preferred Appeal No. 509 of 2022 before respondent no. 2 (Excise Commissioner, Bihar, Patna) which was also dismissed on 28/11/2022 on the ground that the sealed house/premise was being used for preparation and storage of illicit liquor without appreciating the facts and circumstances of the case. He further submitted that respondents no. 2 and 3 committed error in not granting the benefit of Sec. 57B of the Bihar Prohibition and Excise Act read with Rule 12B of Bihar Prohibition and Excise Rules, 2021 to the petitioner who is bona fide and innocent owner of the house and the premises in question. He further submitted that after facing full-fledged trial, the petitioner and his wife have been acquitted from all the charges and no action has been taken place by the concerned authority up till now. Learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court in the case of Abdul Vahab Vs State of Madhya Pradesh reported in (2022) 13 SCC 310 wherein the Hon'ble Supreme Court has held that:-