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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> High Court of Patna Principle of alternative remedy is a rule of convenience and not a rule of law MANU/BH/0795/2018 - (27 Mar 2018) </td> </tr> <tr> <td align="left" valign="top">Cosmos Beverages Pvt. Ltd. and Ors. Vs. The State of Bihar and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">The Writ Petitioners have moved present court in its extraordinary writ jurisdiction for setting aside the order passed by the Excise Commissioner. By the impugned order, the Excise Commissioner, has rejected the appeal preferred by the Petitioners for release of 550 Cartoons (4842.00 liters) of Mac Dowell No. 1 whisky as per seizure list dated 6th May, 2016 with the Truck bearing number WB-51A/7310 which has been confiscated under Section 58(2) of Bihar Prohibition and Excise Act, 2016 and thereby he refused to interfere with the confiscation order passed by the Collector in Excise Case No. 08/2016-17.

The genuineness of the documents in form of Invoice and the copies of the consignment notes issued in the name of the Petitioner No. 2 by Petitioner No. 1 are not in dispute and they are found to be genuine. Copy of the transport pass for the transport of duty free or duty paid packaged foreign liquor and Lorry Challan showing the vehicle no. are all genuine documents. In the counter affidavit/supplementary counter affidavit, the Respondent No. 3 has admitted that during verification, the report of Government of West Bengal, Excise Department has also been found to be correct. The Respondent admits that, the number of export and import permit was mentioned in the said Invoice. If the Invoice has mentioned the Export and Import permit numbers and the said Invoice has been found to be correct, confiscation of the goods and vehicle only for not carrying the valid excise import and export pass even though the Petitioners were carrying transport pass along with consignment cannot be said to be proper exercise of power by the Collector-cum-District Magistrate.

According to Section 56 of the Prohibition Act, 2016, whenever an offence has been committed which is punishable under this Act, the things mentioned under Clause (a), (b), (c), (d) and (e) are liable to be confiscated. It is not the case of the Respondent No. 3 that, the 550 Cartoons which were seized along with the Truck in question are the things in respect of which an offence has been committed. The stand in the counter affidavit is that, the Transporter was not carrying the copy of the valid export/import permit and it was not digitally locked but there is no denial of the fact that the Invoice which are part of the records duly mentioned the export/import permit number and in course of confiscation proceeding, the District Magistrate-Cum-Collector has not held that, the said import permit number and export permit number are falsely and wrongly recorded.

The discrepancy found in the total bulk liters recorded in the invoice and the seizure list has been made another ground for confiscation of the entire consignment which cannot be approved. So far as the materials which have been seized and confiscated are concerned, those are very much covered under the Invoice and the transport pass and in case any short fall has been found in the quantity mentioned in the Invoice and that of the seizure list, the same may be a matter to be considered separately to find out whether the short fall has occasioned due to any criminal intent, as alleged by the Respondent No. 3, but the consignment which has been seized and confiscated in the present case, in the opinion of present Court have been wrongly confiscated, if not seized on the ground of shortage of quantity in the seizure list.

It is not the case of Respondent No. 3 that the vehicle was found loaded with more quantity of IMFL than the quantity mentioned in the Invoice and the transport pass rather it is a case where the quantity loaded on the Truck was a little less than the quantity mentioned in the Invoice. In the facts of the present case, it cannot be said that liquor were being unlawfully transported or sold.

There is force in submission for the Petitioners, in case the vehicle plying on the National Highway en route to West Bengal via the territories of the State of Bihar was required to be digitally locked and that facility was available at Farig Gola Check Post then, it was the concerned authorities of the State of Bihar to provide the digital lock otherwise in absence of any prima facie proof of fact that, the Petitioners had entered in any illegal transaction of sale of liquor inside the State territory the vehicle and the entire consignment in question cannot be allowed to be confiscated.

Regarding submission of the learned counsel regarding the alternative remedy is concerned, Court is of view that, the Petitioners had availed the right of first appeal before the Commissioner of Excise and then finding that both the authorities have taken a perversed view in complete violation of law moved present court in its writ jurisdiction rather than preferring a second appeal before the State Government. It is well settled that principle of alternative remedy is a rule of convenience and not a rule of law. In an appropriate case, this Court in exercise of its' extraordinary writ jurisdiction under Article 226 of the Constitution of India may be inclined to entertain a writ application without relegating the Petitioners back to the statutory remedy. Both the impugned orders are set aside and the writ application is allowed. The Respondents are directed to release the truck as well as the 550 Cartoons of whisky which was the subject matter of confiscation within a period of one week from the date of receipt/production of a copy of this order.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Confiscation, Validity, Remedy</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>