Patna High Court
Aniket Singh vs The State Of Bihar on 6 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 37686 of 2020
Arising Out of PS. Case No.-354 Year-2020 Thana- SHERGHATI District- Gaya
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Aniket Singh, aged about 28 years, Male the Owner of Hotel Welcome, Son
of Sanjay Singh, Resident of Gola Bazar Sherghati, PS - Sherghati District
Gaya.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Shivendra Prasad, Advocate
For the State : Mr. Umesh Lal Verma, APP
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 06-08-2021
The matter has been heard via video conferencing.
2. Heard Mr. Shivendra Prasad, learned counsel for the
petitioner and Mr. Umesh Lal Verma, learned Additional Public
Prosecutor (hereinafter referred to as the 'APP') for the State.
3. The petitioner apprehends arrest in connection with
Sherghati PS Case No. 354 of 2020 dated 28.07.2020, 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
Hotel Welcome, which is owned by him, situated at Nai Bazar,
Sherghati, 534 cans, each containing 300 ML of fruit beer
containing 0.6 to 0.8 % alcohol, has been recovered.
5. Learned counsel for the petitioner submitted that first
of all, the entire prosecution case is mala fide for the reason
that even the chemical examination revealed that percentage of
Patna High Court CR. MISC. No.37686 of 2020 dt.06-08-2021
alcohol by volume varied from 0.6 to 0.8%, which is well under
the limit by which any drink can be classified as alcoholic and
intoxicant, for which BIS has prescribed a limit of 4%. It was
submitted that though the Act does not lay down any
percentage, but in the judgment of this Court in Cr. WJC No. 627
of 2017 dated 05.12.2017, the word "alcoholic beverage or
potable liquor", under Section 2(4) of the Act, has been
considered and it has been held that the Act prohibits "intoxicant
or liquor containing alcohol of any strength and purity as per the
definition of 'alcoholic' under Section 2(3) of the Act" and
simultaneously, it does not prohibit sale etc. of non-alcoholic
substances in conformity with the standard set by the BIS, in
view of the definition and clarification contained under Sections
2(4) and 2(6) of the Act. Thus, it was submitted that both
sections, if read together, would show that in the present case
whatever has been recovered would not constitute an offence
under the Act. Learned counsel submitted that petitioner does
not have any other criminal antecedent.
6. On 16.07.2021, the Court had called upon learned
APP to seek instructions on the aforesaid submissions of the
petitioner. Today, a communication from the Senior
Superintendent of Police, Gaya has been brought on record, in
Patna High Court CR. MISC. No.37686 of 2020 dt.06-08-2021
which it has been stated that as per notification dated 19.03.2018,
issued by the Ministry of Health and Family Welfare (Food Safety
and Standard Authority of India), alcoholic beverage has been
specified to be a liquor or brew containing more than 0.5%
ethanol and, thus, the recovery of the fruit beer in which ethyl
alcohol content was 0.6% to 0.8% V/V, comes within the purview
of the Act. It has further been stated that the recovery of the drink
of Kingfisher, Budweiser and Hrineken Company containing ethyl
alcohol in the aforesaid percentage clearly would be covered
under the Act.
7. Learned counsel for the petitioner submitted that the
fruit beer seized had been given to Lallan Yadav by M/s Kumar
Construction which was the distributor of fruit beer and Lallan
Yadav had occupied the room of the petitioner's hotel from which
recovery has been effected, and, thus, the petitioner cannot be held
liable for such recovery.
8. Having considered the facts and circumstances of the
case and submissions of learned counsel for the parties, the Court
finds that for the purposes of consideration of the present petition,
a prima facie offence is required to be seen whether made out
under the Act. In the present case, when as per notification dated
19.03.2018, issued by the Ministry of Home and Family Welfare
Patna High Court CR. MISC. No.37686 of 2020 dt.06-08-2021
(Food Safety and Standard Authority of India), alcoholic beverage
has been specified as containing more than 0.5 % ethanol and in
the present case, the percentage of ethanol being 0.6 to 0.8, prima
facie, an offence is made out under the Act. The Act further
stipulates that the owner of the premises would also be liable for
such recovery. The Court would pause here to indicate that though
such presumption is rebuttable, but it has to be at the stage of trial
where it has to be proved that the accused had no concern with the
recovered article which can be done only upon adducing evidence
and the stage would be clearly at the time of trial.
9. Thus, the Court finds that prima facie an offence
having been made out under the Act, the present petition under
Section 438 of the Code of Criminal Procedure, 1973 would not
be maintainable due to bar of Section 76(2) of the Act.
10. In the aforesaid background, the petition stands
dismissed as not maintainable.
11. Interim protection granted to the petitioner under
order dated 16.07.2021, stands vacated.
(Ahsanuddin Amanullah, J.)
P. Kumar
AFR/NAFR
U
T
