The Owner Cannot Be Held Responsible Unless Evidence Is Placed That The Owner Is Also Involved In The Alleged Offences Under The Excise Act : High Court Of Patna

Citation: CWJC No.9207 of 2017

Coram: Honourable Mr. Justice P. B. Bajanthri And Honourable Mr. Justice Ramesh Chand Malviya

Decided on: 07-11-2023

Introduction:

In the instant petition, petitioner has prayed for the following reliefs:

• Issuance of writ of certiorari quashing the order, dated 07.02.2017/16.05.2017 the passed by Collector-cum-District Magistrate by which in purported exercise of powers conferred under Section 58 of the Bihar Prohibition and Excise Act, 2016, the entire premises, namely, Hotel Chandralok Continental, having an area of 0.3090 hectares has been confiscated;
• Directing the respondents to forthwith release the aforesaid premises situated over Khata No.140, Khesra No.45(Ka), (Kha), (Ga), 46(Ka), (Kha), (Ga) having an area of 0.3090 hectares in the district of Muzaffarpur in favour of the petitioner.
• To stay the order, dated impugned 07.02.2017/16.05.2017 passed by the Collector-cum-District Magistrate.

Facts:

Petitioner-Rakesh Kumar stated to be the owner of Hotel Chandralok Continental, Muzaffarpur situated over Khata No. 140, Khesra No. 45(Ka), (Kha), (Ga), 46(Ka), (Kha), (Ga) having an area of 0.3090 hectares was given in lease in favour of Md. Rizwanul Haque. During the lease period lease holder, Md. Rizwanul Haque or his employees stated to be in possession of illegal liquor to the extent of 2.25 litres of foreign liquor and it was seized on 17.08.2016 and case was registered for the offences under the Excise Act. The petitioner who was an owner and lessor has been arrayed as co- accused.

Petitioner filed petition under Section 482 of Cr.P.C insofar as quashing the entire proceedings arising out of Excise Case No. 239 of 2016 in Criminal Writ Petition Case No. 939 of 2016 bearing Thana Number- Government Official Complaint, District – Muzaffarpur. On 15.09.2023, this Court allowed the Criminal Writ Petition Case No. 939 of 2016.

In the meanwhile, official respondents initiated proceedings under Section 58 of the Bihar Prohibition and Excise Act, 2016 (for short ‘Act, 2016’) insofar as the order of the confiscation proceedings dated 07.02.2017/16.05.2017 in Confiscation Case No. 26 of 2016-17 is concerned. The subject matter of premises cited supra has been confiscated declaring that the aforesaid premises is a Government property. Thus, petitioner has assailed the order of confiscation proceedings.

The counsel of petitioner contends the impugned action of confiscation proceedings is liable to be set aside since there is no role played by the petitioner insofar as alleged offences under Excise Act. It is submitted that lease executed by the petitioner is not registered document, therefore, the same cannot be taken note of, hence, no interference is warranted. That apart, petitioner has not exhausted the remedy of appeal and revision under Section 92 and 92 of the Act, 2016.

Court’s Analysis and Decision:

It is undisputed that petitioner is owner of the subject matter of premises and it is also not disputed that subject matter of premises was leased out to Md. Rizwanul Haque during the intervening period from 01.06.2016 to 30.04.2017. The premises was under lease, the owner cannot be held responsible unless and until certain corroborative evidence is placed on record to the extent that he or she the owner is also involved in the alleged offences under the Excise Act.

In the present case, official respondents have proceeded to initiate and complete the confiscation proceedings only on the score that petitioner was an owner and the lease deed executed on 01.06.2016 is unregistered document. The aforementioned contentions cannot be appreciated for the reasons that lease deed dated 01.06.2016 is not disputed only the nature of document is disputed that too in respect of non-registered. No material evidence has been produced in order to corroborate the petitioner’s involvement in the alleged offences so as to implicate him in the confiscation proceedings.

Hence, the impugned action of the confiscation proceedings dated 07.02.2017/16.05.2017 passed by the Collector-cum-District Magistrate, Muzaffarpur in Confiscation Case No. 26 of 2016-17 was set aside by the court.