Patna High Court
Sunil Kumar vs The State Of Bihar on 2 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.36628 of 2020
Arising Out of PS. Case No.-457 Year-2020 Thana- BANJARIA District- East Champaran
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Sunil Kumar, age about 22 years, male, son of Harendra Mukhiya Resident of
Village- Chelalaha Kothi P.S.- Banjariya District -East Champaran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Ms. Ranjana Srivastava, Advocate
For the State : Mr. Akbar Ali, APP
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 02-08-2021
The matter has been heard via video conferencing.
2. Heard Ms. Ranjana Srivastava, learned counsel for
the petitioner and Mr. Akbar Ali, learned Additional Public
Prosecutor (hereinafter referred to as the 'APP') for the State.
3. The petitioner apprehends arrest in connection with
Banjariya (Turkolia) PS Case No. 457 of 2020 dated
11.07.2020, instituted under Sections 272/273/34 of the Indian
Penal Code and 30(a) of the Bihar Prohibition and Excise Act,
2016 (hereinafter referred to as the 'Act').
4. The allegation against the petitioner is that when the
police on secret information that two people were going on
motorcycle with wine, reached the place two persons riding a
motorcycle were seen, who tried to run away and on chase they
Patna High Court CR. MISC. No.36628 of 2020 dt.02-08-2021
left the motorcycle on the road and fled away and from the
motorcycle 40 litres Indian chulai wine kept in a jute bag was
recovered. It is alleged that the petitioner and the other person,
namely, Munna Kumar were on the motorcycle involved in the
wine business.
5. Learned counsel for the petitioner submitted that he
has been falsely implicated and in fact he lives in Mumbai to
earn his livelihood and was not even in the village at the
relevant time. It was submitted that the petitioner has no other
criminal antecedent.
6. On a query of the Court to learned counsel for the
petitioner with regard to the ownership of the motorcycle which
was seized and from which recovery has been made, learned
counsel submitted that the motorcycle belonged to the petitioner
but her argument was that it was taken by his friend and, thus,
he was neither responsible nor was aware for what has been
found on the motorcycle.
7. Learned APP submitted that as per the allegation,
the motorcycle from which recovery has been made belonged to
the petitioner and, thus, the present petition would not be
maintainable in view of bar of Section 76(2) of the Act where an
offence is made out under the Act.
Patna High Court CR. MISC. No.36628 of 2020 dt.02-08-2021
8. 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.
9. Once there is recovery from the motorcycle of
which the petitioner was the owner, and such fact being
admitted, prima facie, an offence would be made out under the
Act against the petitioner and, thus, the present petition seeking
pre-arrest bail under Section 438 of the Code of Criminal
Procedure, 1973 would not be maintainable.
10. In the aforesaid background, the petition stands
dismissed as not maintainable.
(Ahsanuddin Amanullah, J)
Anjani/-
AFR/NAFR
U
T
