Pradhan Hembram vs The State Of Bihar
2021 Latest Caselaw 1959 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.34644 of 2020
           Arising Out of PS. Case No.-124 Year-2020 Thana- DAGARUA District- Purnia
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1. Pradhan Hembram (Male), aged about 24 years, S/o Late Sanjhala Hembram

2. Tallu Hembram @ Tallu Mukhiya, (Male), aged about 37 years, S/o Laxmi Hembram

3. Manju Hembram, (Male), aged about 40 years, S/o Manjeel Hembram

All are resident of Village-Malo Bota Satari Tola, Police Station-Dagarua, District-Purnea.

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

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

     For the Petitioner/s    :        Mr. Md. Helal Ahmad, Advocate
     For the State           :        Mr. Amitesh Kumar, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 17-04-2021

The matter has been heard via video conferencing.

2. Heard Mr. Md. Helal Ahmad, learned counsel for the

petitioners and Mr. Amitesh Kumar, learned Additional Public

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

3. The petitioners apprehend arrest in connection with

Dagarua PS Case No. 124 of 2020 dated 19.08.2020, instituted

under Sections 272/273 of the Indian Penal Code and 30(a) of the

Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as

the 'Act').

Patna High Court CR. MISC. No.34644 of 2020 dt.17-04-2021

4. The allegation against the petitioners is that from their

house, various quantities of country-made liquor were recovered.

5. Learned counsel for the petitioners submitted that

though in the FIR recovery has been shown from the house of the

petitioners, but on the seizure list, there is no signature of any

family member of the petitioners who were present in the house,

which gives rise to doubt as to whether there was actual seizure

from the house of the petitioners. Learned counsel submitted that

there being basic irregularity in the case, the petitioners be granted

indulgence. It was further submitted that the petitioners have no

criminal antecedent.

6. Learned APP submitted that as per the FIR, two

independent witnesses of the locality have signed and further that

one person who was caught from whom also seizure was made has

also signed on the seizure list. It was submitted that the law

requires only a witness and it is not that a family member of the

accused, who may or may not be present, has to sign as any two

persons are competent to be witnesses and when two persons in

the present case are independent witness, the requirement of law

stands fulfilled. Learned counsel submitted that once, as per the

FIR, recovery is shown from the house of the petitioners, the

present application under Section 438 of the Code of Criminal Patna High Court CR. MISC. No.34644 of 2020 dt.17-04-2021

Procedure, 1973 would not maintainable in view of bar of 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. As recovery is

said to be from the house of the petitioners, prima facie, offence is

made out and, thus, the bar of Section 76(2) of the Act would

come into play.

8. For reasons aforesaid, the application stands disposed

off as not maintainable.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T