Dukha Chaudhaay @ Dukha Chaudhari vs The State Of Bihar
2021 Latest Caselaw 4232 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL MISCELLANEOUS No. 2165 of 2021
        Arising Out of PS. Case No.-68 Year-2020 Thana- PUPRI District- Sitamarhi
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Dukha Chaudhary @ Dukha Chaudhari, aged about 56 years, Male, Son of Jageshwar Chaudhary, Resident of Village - Bailghat Pupri Bazar, PS- Pupri, District- Sitamarhi.

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

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

For the Petitioner/s : Mr. Manoj Kumar, Advocate For the State : Mr. Anil Prasad Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 23-08-2021

The matter has been heard via video conferencing.

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

petitioner and Mr. Anil Prasad Singh, learned Additional Public

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

3. The petitioner apprehends arrest in connection with

Pupri PS Case No. 68 of 2020 dated 08.03.2020, instituted

under Sections 272 and 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 and others is that

when police on receiving information that some persons

were selling liquor near Bailghat Pupri Bazar reached the spot, Patna High Court CR. MISC. No.2165 of 2021 dt.23-08-2021

on seeing the police jeep, 15-20 persons started running away

and the Chowkidar took the name of 16 persons, including the

petitioner, and further that when the hut of all the accused was

searched, liquor was found and specifically from the petitioner's

hut, 2.10 litres of Nepali liquor was seized.

5. Learned counsel for the petitioner submitted that

only on suspicion he has been named and even the so-called

recovery from the hut was not correct as the said hut is on the

side of the road with which the petitioner has no concern. It was

further submitted that the petitioner has no criminal antecedent.

6. On the aforesaid stand of learned counsel for the

petitioner, on 22.07.2021, the Court had asked learned APP to

obtain the up-to-date legible photocopy of the entire case diary

of the present case from the Superintendent of Police, Sitamarhi as

also a specific report with regard to whether the hut mentioned in

the FIR, from which recovery has been made, belongs to the

petitioner.

7. Learned APP submitted that the same has been

received. It was submitted that as per the report, the hut was in the

palani of the petitioner though the land was Gair Mazarua Aam.

Learned APP submitted that the premises of many similarly

situated persons was raided and seizure of liquor has been made. It Patna High Court CR. MISC. No.2165 of 2021 dt.23-08-2021

was submitted that once the recovery is from the premises

belonging to the petitioner, the present petition would not be

maintainable due to bar of Section 76(2) of the Act.

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. Once, both with

regard to the FIR as also from the report of the Superintendent of

Police, Sitamarhi, it has come that the hut was in the palani of the

petitioner, prima facie an offence would be made out under the

Act, though rebuttable at the time of trial. However, offence being

made out, as has rightly been submitted by learned APP, the

present petition under Section 438 of the Code of Criminal

Procedure, 1973 would not be maintainable due to specific bar of

Section 76(2) of the Act.

9. Accordingly, the petition stands dismissed as not

maintainable.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T