Ibha Banerjee vs State Of Bihar And Ors

Heard Mr. Pramod Kumar Singh, learned counsel for the petitioner and learned AC to GP-7 for the respondent-State.

The present writ application has been filed for release of HML Passion Pro motorcycle bearing Registration No. BR01DF5165, in favour of petitioner

which has been seized in P. R. No.182 of 2019 arising out of Special Case No.2786 of 2019 registered for the offence punishable under Section 30(a)

of Bihar Prohibition and Excise Act, 2016, as amended by the Amendment Act 8 of 2018 (hereinafter referred to as ‘the Act’).

The prosecution case is that 9 litres of Indian Made Foreign Liquor were recovered from the possession of the pillion rider Bhola Yadav.

It is submitted by learned counsel for the petitioner that the petitioner claims to be the registered owner of the vehicle in question. The copy of the

registration certificate of the vehicle in question has been brought on record as Annexure- 2. However, learned counsel for the petitioner very fairly

produced a notice dated 19.09.2015 issued under the signature of the Collector-cum-District Magistrate, Patna suggesting initiation of Excise

Confiscation Case No. 1467 of 2019-20 arising out of P.R. No.182 of 2019. Let the same be kept on record

It is submitted by learned AC to GP-7 that proceeding of the said confiscation case will be concluded within a time frame.

Considering the fact that once the confiscation proceeding is initiated, the exercise of discretionary jurisdiction under Article 226 of the Constitution of

India, having self imposed restrictions can be exercised in exceptional or in a monstrous situation. Considering the view taken by the Apex Court in the

case of State of Karnataka Vs. K. Krishnan reported in (2000) 7 Supreme Court Cases 8 0and in the case of State of West Bengal and Ors. Vs. Sujit

Kumar Rana reported in (2004) 4 Supreme Court Cases 129, a Full Bench of this Court in the case of Baleshwar Roy Vs. The State of Bihar and

Ors. reported in 2018(4) PLJR 970, held as follows:

“62. It may, however, be added that Article 226 of the Constitution of India provides power to the High Court to issue writs to any person or

authority, including in appropriate cases, any Government, any order or writs (including writs in the nature of habeas corpus, mandamus, prohibition,

quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part-III and for any other purpose). Similarly

Article 227 of the Constitution of India provides the power of superintendence over all Courts and Tribunals throughout the territories in relation to

which any High Court exercises its jurisdiction. The powers of the High Court under Articles 226 and 227 of the Constitution of India cannot be

curtailed under any circumstance, as the power flows from the Constitution itself. No statutory bar can affect the power of the High Court under

Articles 226 and 227 of the Constitution of India.

Despite such wide and untrammeled powers, without any circumcision by external restrictions, the Courts have evolved certain self-imposed limits

while exercising these powers. The High Courts, normally, would not go beyond justified inhibitions under any Statue except where there is a complete

jettisoning of rule of law or under exceptional circumstances which demand timely judicial interdict. This inhibition is basically ordained, keeping in

mind that there is a national weal behind any valid piece of Legislation incorporating and inhering in itself the social objective behind any Legislation.

Though, no limitations or fetters have been put on the powers of the High Court under Articles 226 and 227 of the Constitution of India, as the High

Courts perform as sentinel on the qui-vive, but such power is not to be exercised casually and without coming to the conclusion that non-exercise of

such power would lead to positive injustice. Times without number, it has been held by the High Courts that only under condition of a person

establishing that substantial injustice has or is likely to ensue, such extraordinary powers can be exercised. It needs no adumbration by this date that

the plenary powers of the High Court have only to be exercised in the interest of justice.

Thus, an order of release may be passed under Article 226/227 of the Constitution of India, even pending confiscation proceedings, but only when

it is established before the Court that the procedure prescribed and the law in that regard has been completely flouted and that there is complete

violation of the procedure prescribed for confiscation, viz., notice to the offender before confiscation, allowing him opportunity of giving written

representation and affording hearing on the issue to him and that such injustice cannot be remedied without the exercise of the extraordinary power.

Needless to state that under Article 226 of the Constitution of India, the Court will not go into the disputed question of facts.

Thus, the powers directing for release of the vehicles or goods, during the pendency of the confiscation, can only be sparingly exercised under

monstrous situations and circumstances when injustice occurs because of non-fulfillment of the conditions for confiscation.â€​

Since the vehicle in question was seized on 14.03.2019, it is expected that the Respondent No. 2, the District Magistrate-cum-Collector, Patna will

conclude the proceeding of the Confiscation Case No.1467 of 2019-20 and dispose of the same by a reasoned and speaking order within a period of

eight weeks from the date of receipt/production of a copy of this order in accordance with law.

The petitioner is also expected to appear regularly and participate in the confiscation proceeding.

Accordingly, with the above observation and direction, the present writ application is disposed of.