Monu Kumar vs The State Of Bihar
2021 Latest Caselaw 1869 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No. 33986 of 2020
   Arising Out of PS Case No.-338 Year-2020 Thana- BEGUSARAI MUFFASIL District-
                                       Begusarai
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Monu Kumar, aged about 22 years, Sex- Male, Son of Late Bachkun Singh, Resident of Village- Akbarpur Puranidih, PS- Samho, District- Begusarai.

... ... Petitioner/s Versus The State of Bihar

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s    :       Mr. Bipin Kumar, Advocate
For the State           :       Mr. Md. Arif, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 06-04-2021

The matter has been heard via video conferencing.

2. Heard Mr. Bipin Kumar, learned counsel for the

petitioner and Mr. Md. Arif, learned Additional Public Prosecutor

(hereinafter referred to as the 'APP') for the State.

3. The petitioner apprehends arrest in connection with

Muffasil PS Case No. 338 of 2020 dated 08.07.2020, instituted

under Sections 30(a) and 41(1) of the Bihar Prohibition and

Excise Act, 2016 (hereinafter referred to as the 'Act').

4. The allegation against the petitioner is that from his

motorcycle, on search, there was recovery of 9.375 litres of

foreign liquor.

Patna High Court CR. MISC. No.33986 of 2020 dt.06-04-2021

5. Learned counsel for the petitioner submitted that the

motorcycle was stolen for which he has filed an Informatory

Petition before the Chief Judicial Magistrate, Begusarai and that

he has no connection with the recovered liquor. It was further

submitted that the petitioner has no criminal antecedent.

6. Learned APP raised a preliminary objection and

submitted that the recovery is from the motorcycle of the

petitioner, which is an admitted position. It was further submitted

that only to create a defence, an Informatory Petition was filed

before the learned Chief Judicial Magistrate, Begusarai as there is

no provision of filing of any Informatory Petition. Further, it was

submitted that the said Informatory Petition was also filed after

lodging of the present case. Thus, learned APP submitted that the

present application under Section 438 of the Code of Criminal

Procedure, 1973 is not maintainable as there is bar to the same

under Section 76(2) of the Act.

7. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

finds substance in the contention of learned APP. The recovery of

liquor being from the motorcycle owned by the petitioner, prima

facie offence is made out under the Act and, thus, the present

application would not be maintainable.

Patna High Court CR. MISC. No.33986 of 2020 dt.06-04-2021

8. Accordingly, the application stands disposed off as

not maintainable.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T