Patna High Court
Bhushan Mistri vs The State Of Bihar on 27 April, 2026
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah, Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16004 of 2025
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Bhushan Mistri S/o Late Raj Kumar Mistri, Resident of Village- Azadshatru
Nagar, PS- Rajgir, District- Nalanda.
... ... Petitioner
Versus
1. The State of Bihar through the Principal Secretary, Prohibition and Excise
Department, Government of Bihar.
2. The Director General Police, Bihar.
3. The District Magistrate, Nalanda.
4. The Superintendent of Police, Nalanda.
5. Sub-Divisional Magistrate, Rajgir, District Nalanda.
6. The Circle Officer, Rajgir, District Nalanda.
7. The Station House Officer, Rajgir, District Nalanda.
... ... Respondents
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Appearance :
For the Petitioner : Mr. Shailendra Kumar, Advocate
Mr. Ajit Ranjan Kumar, Advocate
Mr. Surendra Kumar, Advocate
For the Respondents : Mr. Indreshwar Pd. Mandal, AC to GA-3
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 27-04-2026
Heard the learned counsel for the parties.
2. The present writ petition has been filed for quashing
the order dated 14.07.2025, passed by the learned Court of Sub-
Divisional Magistrate, Rajgir in Confiscation (Excise) Case No.
31 of 2024, whereby and whereunder the room of the house of
the petitioner, situated at Mauza-Rajgir, P.S. No.-485,
appertaining to Khata No.-145, Khasara No.-4895 has been
confiscated. It is also prayed to de-seal the room of the house of
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the petitioner in favor of the petitioner.
3. The brief facts of the case are that the Sub-Inspector of
Police posted at Rajgir Police Station was on patrolling duty
along with Police force on 05.05.2024 at about 10:00 AM as
also was engaged in conducting raid for recovery of illicit
liquor. At about 02:00 PM, the Officer-in-charge of Rajgir
Police Station informed the said Sub-Inspector of Police
(informant) that the tenants of the house of the petitioner,
namely Shrinath Kumar @ Shivnath Prasad @ Ramlal along
with his son, Himansu Kumar @ Tutu are engaged in trade of
illicit liquor as also they are engaged in delivering illicit liquor
by their Scooty bearing registration No. BR 21S 5962.
Thereafter, the informant along with the Police force had
conducted a raid at the house of the petitioner, especially the
room in occupation of the tenants of the petitioner at around
02:30 PM, whereafter search was made and 100 liters of illicit
liquor as also 0.360 liters of illicit English liquor was recovered
from the room in question apart from recovery of 0.735 liters of
illicit liquor from the Scooty in question. On the basis of the
written complaint of the informant, Rajgir P.S. Case No. 158 of
2024 dated 05.05.2024 was registered under Section 30 (a) of
the Bihar Prohibition & Excise Act, 2016 (as amended up to
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date) (hereinafter referred to as "Act, 2016").
4. The learned counsel for the petitioner submits that it
has been admitted in the FIR itself that the illicit liquor has been
recovered by the Police from a room in possession of the tenants
of the petitioner, hence admittedly the petitioner is not having
any role to play in the alleged occurrence. It is further submitted
that neither the petitioner nor his family members have been
made accused in the aforesaid criminal case and moreover, the
petitioner is not having any connection or relation with the
accused persons who have been arrayed in the accused column
in the aforesaid criminal case. It is next submitted that the
aforesaid room in question is a part of the house of the petitioner
situated at Mauza-Rajgir, P.S. No.-485, District- Nalanda,
appertaining to Khata No.-145, Khasara No.-4895, which has
been directed to be confiscated by the impugned order dated
14.07.2025
. It is next submitted that that the said order dated
14.07.2025 has not taken into account the admitted fact that
illicit liquor was seized from a room situated in the house of the
petitioner from the tenants of the petitioner and not from the
petitioner himself and that is why the petitioner has not been
made an accused in the aforesaid criminal case. However, it is
only the tenants, namely Shrinath Kumar @ Shivnath Prasad
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and Himansu Kumar @ Tutu who have been made accused in
the aforesaid criminal case. Thus, it is submitted that the
impugned order dt. 14.7.2025, passed by the Ld. Court of Sub-
Divisional Magistrate, Rajgir in Confiscation (Excise) Case No.
31/2024 is erroneous and fit to be set aside.
5. Per contra, the learned counsel for the respondents has
submitted that a raid was conducted upon receipt of confidential
information, whereupon huge quantity of illicit liquor was
recovered from the room in question. However, it has not been
denied that the recovery of illicit liquor was made from the
tenants of the petitioner. Nonetheless, it is submitted that there is
no infirmity in the impugned order dated 14.07.2025 passed by
the learned Sub-Divisional Officer, Rajgir.
6. We have heard the learned counsel for the parties and
perused the materials on record from which it is apparent that
the present case arises out of Rajgir P.S. Case No. 158 of 2024,
dated 05.05.2024 registered under Section 30(a) of the Act,
2016 against Shrinath Kumar @ Shivnath Prasad and Himansu
Kumar @ Tutu, who are admittedly the tenants of the petitioner
and were living in a room situated in the house of the petitioner
from where illicit liquor, as aforesaid, has been recovered. At
this juncture, we would like to advert to the provisions
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contained in the amended Act, 2016, Section 30, 56, 57B and 58
being relevant are being reproduced herein below:-
“30. Penalty for unlawful manufacture, import, export,
transport, possession, sale, purchase, distribution, etc. of
any intoxicant or liquor. –
Whoever, in contravention of any provision of this Act or of
any rule, regulation, order made, notification issued
thereunder, or without a valid license, permit or pass
issued under this Act, or in breach of any condition of any
license, permit or pass renewed or authorization granted
thereunder-
(a) Manufactures, possesses, buys, sells, distributes,
collects, stores, bottles, imports, exports, transports,
removes or cultivates any intoxicant, liquor, hemp; or
(b) Constructs or establishes or works in any manufactory,
distillery, brewery or warehouse; or
(c) Manufactures, uses, keeps or has in his possession any
material, utensil, implement or apparatus, or uses any
premises, whatsoever, for the purpose of manufacturing
any intoxicant or liquor; or
(d) Manufactures any material or film either with or
without the State Government logo or logo of any State or
wrapper or any other thing in which liquor or intoxicant
can be packed or any apparatus or implement or machine,
for the purpose of packing any liquor or intoxicant; or
(e) Removes any liquor or intoxicant from any distillery,
brewery, warehouse, other place of storage licensed,
established, authorized or continued under this Act; or
(f) Manufactures, possesses, sells, distributes, bottles,
imports, exports, transports removes, any preparation
made with or without the use of any intoxicant or liquor,
which can serve as an alcohol or a substitute for alcohol
and is used or likely to be used or consumed for the
purposes of getting intoxicated;
shall be punishable with imprisonment for the term which
may extend to life and with fine which may extend to ten
lakh rupees.
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Provided that the punishment:
(a) For the first offence shall not be less than five years
imprisonment and fine of not less than one lakh rupees,
and
(b) For the second and subsequent offences shall not be
less than ten years rigorous imprisonment and fine of not
less than five lakh rupees”.
56. Confiscation of Seized Items.- (1) Notwithstanding
anything contained in Section 57B, whenever an offence
punishable under this Act, is committed, the Collector or
an Officer authorized by him may confiscate such items
based on the report of the investigating officer.
(2) Such items may include-
(i) any premises or part thereof;
(ii) any animal, vehicle, vessel or conveyance;
(iii) any liquor or intoxicant;
(iv) any other item having bearing with the case;
Provided, where things as mentioned in Section 57 are to
be destroyed, then the Collector or an officer authorized
by him need not confiscate the same before their
destruction.
(3) The State Government may issue necessary direction,
guidelines, regulations and instructions with respect to the
mode and manner of search, seizure, destruction and
confiscation.
57B. Things or premises liable to be released upon
penalty.- (1) Any animal, vehicle, vessel or other
conveyance used for committing any offence punishable
under this Act that has been seized by any police Officer or
Excise Officer may be released by the Collector upon
payment of such penalty as may be notified by the State
Government.
2. Any premises or part thereof used for committing any
offence punishable under this Act that has been seized by
any police Officer or Excise Officer may be released by the
Collector upon payment of such penalty as may be notified
by the State Government.
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(3) If the person concerned does not pay the penalty, then
the Collector shall proceed to confiscate the said animal,
vehicle, vessel or other conveyance and premises as per
Section-58.
58. Confiscation by District Collector. (1)
Notwithstanding anything contained in this Act or any
other law for the time being in force, where anything liable
for confiscation under this Act is seized or detained under
the provisions of this Act, the officer seizing and detaining
such property shall, without any reasonable delay submit a
report to the District Collector who has jurisdiction over
the said area;
(2) On receipt of the report under subsection (1), the
District Collector if satisfied that an offence under this Act
has been committed, may, whether or not prosecution is
instituted for the commission of such an offence and
whether or not a case is pending before any court, order
confiscation of such property;
(3) The Collector shall, before passing an order under
subsection (2), give a reasonable opportunity to the person
concerned, of being heard;
(4) While making an order of confiscation under sub-
section (2), the District Collector may also order that such
of the properties which the order of confiscation relates,
which in his opinion cannot be preserved or are not fit for
human consumption, be destroyed. Whenever any
confiscated article has to be destroyed in conformity with
these provisions, it shall be destroyed in the presence of an
Executive Magistrate or officer ordering the confiscation
or forfeiture, as the case may be, or in the presence of the
Excise Officer not below the rank of a Sub Inspector;
(5) While making an order of confiscation under sub-
section (2), if the District Collector is of the opinion that it
is expedient in the public interest to do so, he may order
the said property or any part thereof to be sold by public
auction or dispose of departmentally and proceeds
deposited with the State Government;
(6) The District Collector shall submit a full report of all
particulars of confiscation to the Commissioner of Excise
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within one month of such confiscation”.
7. We would also like to refer to Rule 12B and 13B of the
Bihar Prohibition and Excise (Amendment) Rules, 2022.
“12B. Release of Premises on Payment of Penalty-(1) If
any premises or part thereof has been seized or sealed by
any police or excise officer under the Act, then in terms of
section-57B (2) of the Act, the Collector or an officer
authorized by him, upon receipt of an application in Form
V from the owner of the said premises, may release or
unseal the said premises or part thereof upon payment of
such penalty as may be ordered by the Collector or the
officer authorized by him.
Provided, where it is not possible to ascertain the owner of
the premises or the owner is not coming forward, the
Collector or the officer authorized by him shall, after
waiting for 15 days from the date of seizure/sealing,
proceed to confiscate the premises as per the provisions of
the Act.
(2) The Collector or the officer authorized by him shall
have due regard to the economic status of the individual,
nature of his involvement in the crime, location of the
premises and the quantum of intoxicant recovered while
deciding the quantum of fine to be paid by the individual.
However, the fine shall not be less than Rs. one Lakh in
any case.
In any case, the Collector shall not wait beyond 15 days
from the date of seizure/sealing and if during this period,
the accused/owner does not pay up the penalty he shall
proceed with the confiscation/ auction.
(3) Notwithstanding above, if on a report by police officer
or excise officer, the Collector or the officer authorized by
him is satisfied that releasing the premises shall not be in
the public interest, the Collector or the officer authorized
by him shall proceed ahead with the confiscation of the
said premises or part thereof and its subsequent
auction/disposal.
(4) Such penalty shall be, regardless of the outcome of the
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trial if any, before the Special Court, non-refundable.
(5) The owner of the Premises shall, after the release of the
premises, allow the inspection of the premises as and when
desired by the authorities.
13B. Procedure of confiscation of Premises- (1) Where it
is decided by the Collector that the premises is not to be
released on penalty or where the owner does not pay the
required penalty, the confiscation proceeding shall be
initiated. The proposal for confiscation of the premises
shall be sent by the police/excise officer to the Collector
(or an officer authorized by him) within 30 days from the
date of seizure/sealing. The officer concerned shall
immediately start the confiscation proceeding.
In case of delay of beyond 30 days, in submission of the
proposal for confiscation, the police/excise officer will
have to explain the delay.
(2) The officer concerned, on receipt of proposal of
confiscation of any premises or part thereof any property
liable for confiscation from police/excise officer, shall
issue show cause notice to the owner(s) of the premises or
property. Simultaneously, he shall issue notice to the
Chemical Examiner and/or such revenue officers for their
reports.
(3) Such notice issued by the officer shall be served as per
procedure prescribed in the Code of Criminal Procedure,
1973 for service of summons.
(4) The officer shall provide reasonable opportunity of
hearing to the owner(s) of the premises or property. The
investigating/inquiry officer shall also be given
opportunity to participate in such hearing.
(5) If the person to whom notice has validly been served
fails to appear in the proceeding on two consecutive dates
fixed for hearing, the confiscating authority shall proceed
to pass the order ex-parte.
(6) The officer shall, after hearing the parties, pass
appropriate order of confiscation or unsealing, as the case
may be, with respect to sealed/seized premises or property
on the basis of his satisfaction whether an offence has been
committed or not in terms of the Act.
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(7) The officer shall ensure that the order for confiscation
is passed within 90 days from the date of seizure/sealing of
the premises.
(8) Any person aggrieved by the order passed by the
Collector under the provisions of the Act may file appeal in
the manner prescribed under these rules.”
8. A bare perusal of the aforesaid statutory provisions
would show that a premises or part thereof used for committing
an offence under the Act, 2016 can be seized/confiscated but the
same can be released upon payment of penalty, however while
deciding the quantum of fine to be paid by the individual, due
regard has to be given to the economic status of the individual,
nature of his involvement in the crime, location of the premises
and the quantum of intoxicant recovered. Moreover, before
passing an order of confiscation or unsealing, as the case may
be, with respect to sealed/seized premises or property, the
concerned officer has to be satisfied as to whether an offence
has been committed or not in terms of the Act, 2016. Thus, it is
apparent from the statutory provisions contained in the Act,
2016 and the Rules framed thereunder that direct involvement
or connivance of the owner of the premises in question in illegal
use of such premises for stacking illicit liquor is an essential
prerequisite for seizure and confiscation of the premises in
question or imposing any penalty for release of the same.
9. Now coming back to the present case, we find that
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neither the petitioner has been made an accused in the aforesaid
criminal case nor any recovery of illicit liquor has been made
from his possession nor the respondents have produced any
material in the counter affidavit to show either the involvement
or connivance of the petitioner in the alleged occurrence.
Moreover, there is no proof on record to show that either the
petitioner was having any connection with the accused persons,
namely Shrinath Kumar @ Shivnath Prasad and Himansu
Kumar @ Tutu or he was instrumental in the alleged occurrence
or he was having direct / indirect involvement or connivance in
illegal use of the aforesaid premises for stacking illicit liquor.
Therefore, we find that the action of the State authorities in
sealing the premises in question and confiscating the room in
question by the impugned order dt. 14.7.2025, passed by the Ld.
Court of Sub-Divisional Magistrate, Rajgir is arbitrary and hit
by Article 14 of the Constitution of India. It is also violative of
the constitutional right of the petitioner to hold property as
provided for under Article 300 A of the Constitution of India
which prohibits any deprivation of the property save by
authority of law. Thus, we are of the considered view that the
Act, 2016, in no way authorizes the officials to seize the
premises in question in the facts and circumstances of the
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present case, hence the seizure and the confiscation of the room
in question is without any authority of law.
10. Having regard to the facts and circumstances of the
case and for the foregoing reasons, we set aside the order dated
14.07.2025, passed by the learned Court of Sub-Divisional
Magistrate, Rajgir in Confiscation (Excise) Case No. 31 of
2024, whereby and whereunder the room in question has been
confiscated. Consequently, we direct for de-sealing and release
of the premises in question in favor of the petitioner upon the
State authorities being satisfied about the ownership of the
petitioner with regard to the premises in question within a
period of two weeks of receipt / production of a copy of this
order.
11. The writ petition stands allowed.
(Mohit Kumar Shah, J)
(Arun Kumar Jha, J)
Shahnawaz/-
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