Arun Prasad @ Arun Ray vs The State Of Bihar
2021 Latest Caselaw 1927 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.32855 of 2020
      Arising Out of PS. Case No.-111 Year-2020 Thana- SALIMPUR District- Patna
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Arun Prasad @ Arun Ray, aged about 52 years, Gender-Male, Son of Nanhe Ray Resident of village- Shaidpur Tola, P.S. - Salimpur, District - Patna.

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

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

For the Petitioner/s : Mr. Vijay Kumar Sinha, Advocate For the State : Mr. Mukeshwar Dayal, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 09-04-2021

The matter has been heard via video conferencing.

2. Heard Mr. Vijay Kumar Sinha, learned counsel for

the petitioner and Mr. Mukeshwar Dayal, learned Additional

Public Prosecutor (hereinafter referred to as the 'APP') for the

State.

3. The petitioner apprehends arrest in connection with

Special Case No. 3250 of 2020 arising out of Salimpur PS Case

No. 111 of 2020 dated 20.04.2020, instituted under Section 30(a)

of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred

to as the 'Act').

4. The allegation against the petitioner is that from his

house, when the police went on specific information, though some

persons fled away, which is alleged to include the petitioner, two Patna High Court CR. MISC. No.32855 of 2020 dt.09-04-2021

litres of countrymade liquor and two litres of mahua wine were

recovered.

5. Learned counsel for the petitioner submitted that he

was not caught at the spot and further that no independent

witnesses have signed on the seizure list which is also not in

accordance with the requirement of Section 100 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as the 'Code').

Learned counsel submitted that the petitioner has no criminal

antecedent.

6. Learned APP submitted that as per the allegation, the

recovery is from the house of the petitioner and for such purpose,

the Court earlier had called for a report from the Senior

Superintendent of Police, Patna as to whether the place from

where recovery has been made, is within the premises owned by

the petitioner. It was submitted that such report has been

submitted in which in categorical terms it has been reported that

the place from which liquor has been recovered is part of the

premises of the petitioner and is fully in his control. Thus, learned

counsel submitted that prima facie offence is made out under the

Act which would thus bar the present application under Section

438 of the Code.

Patna High Court CR. MISC. No.32855 of 2020 dt.09-04-2021

7. Having considered the matter, the Court finds

substance in the contention of learned APP. Once the recovery is

shown to be from the premises owned by the petitioner, an

offence, prima facie, would be made out under the Act and, thus,

the bar of Section 76(2) of the Act would apply.

8. In view thereof, the application stands disposed off as

not maintainable.

9. However, on submission of learned counsel for the

petitioner, it is observed that if the petitioner appears before the

Court below within four weeks from today and prays for bail, the

same shall be considered on its own merits, in accordance with

law, without being prejudiced by the present order.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T