Patna High Court
Dabloo Kha @ Sadre Alam Kha vs The State Of Bihar on 27 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 30247 of 2021
Arising Out of PS. Case No.-143 Year-2020 Thana- KANHAULI District- Sitamarhi
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1. Dabloo Kha @ Sadre Alam Kha, Male, aged about 28 years, Son of Idrish
Khan.
2. Jasima Khatoon, Female, aged about 26 years, Wife of Dabloo Kha @ Sadre
Alam Kha.
Both resident of Village- Marpa, Police Station- Kanhauli, District-
Sitamarhi.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Pushpendra Kumar Singh, Advocate
For the State : Mr. Sanjay Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 27-08-2021
The matter has been heard via video conferencing.
2. The case has been taken up out of turn on the basis of
motion slip filed by learned counsel for the petitioners, which was
allowed.
3. Heard Mr. Pushpendra Kumar Singh, learned counsel
for the petitioners and Mr. Sanjay Kumar Singh, learned
Additional Public Prosecutor (hereinafter referred to as the 'APP')
for the State.
4. The petitioners apprehend arrest in connection with
Kanhauli PS Case No. 143 of 2020 dated 23.12.2020, instituted
under Sections 272, 273 of the Indian Penal Code and 30(a) of the
Patna High Court CR. MISC. No.30247 of 2021 dt.27-08-2021
Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as
the 'Act').
5. The allegation against the petitioners is that when
police on prior information that the petitioners were selling illicit
liquor at their house, reached there, from the palani of their house,
about 30 litres of illicit wine was recovered and the accused are
said to have fled away.
6. Learned counsel for the petitioners submitted that the
palani was outside the house and it was an open area and the
petitioners were neither aware of what was there nor were
connected with the recovery. However, it was submitted that even
if, for the sake of argument, it is assumed that the responsibility
has to be taken for recovery of liquor from the palani, it is only
the petitioner no. 1, who was the owner of the palani, can be held
liable as the petitioner no. 2 is only the wife of petitioner no. 1
having an infant child, and there being no recovery from her
possession and even the area from which liquor is said to have
been recovered not belonging to the petitioner no. 2, she has
absolutely no connection with any recovery, much less that of
liquor. Thus, learned counsel submitted that the bar of Section
76(2) of the Act would not come into play in the case of petitioner
Patna High Court CR. MISC. No.30247 of 2021 dt.27-08-2021
no. 2. Learned counsel submitted that the petitioners have no other
criminal antecedent.
7. Learned APP submitted that the recovery has been
made from the palani of the house of the petitioners. However, it
was not controverted that the recovery has not been from the
possession of the petitioner no. 2 and further that the said palani
was owned by petitioner no. 1.
8. Having considered the facts and circumstances of the
case and submissions of learned counsel for the parties, in view of
the fact that alleged recovery is from the palani belonging to the
petitioner no. 1 and merely because the petitioner no. 2 is his wife,
would not ipso facto lead to the presumption that she is also the
owner as there is no concept of being a co-parcener in the property
as she was only the wife of the petitioner no. 1 and not the co-
sharer of his property. Further, the petitioner no. 2 being a young
lady, having no criminal antecedent, indicates that the petitioner
no. 2 may not be connected with recovery of such liquor. Thus, on
an overall circumspection, the Court is inclined to allow the
prayer for pre-arrest bail of the petitioner no. 2.
9. Accordingly, in the event of arrest or surrender before
the Court below within six weeks from today, the petitioner no. 2,
namely, Jasima Khatoon, be released on bail upon furnishing bail
Patna High Court CR. MISC. No.30247 of 2021 dt.27-08-2021
bonds of Rs. 25,000/- (twenty five thousand) with two sureties of
the like amount each to the satisfaction of the learned ADJ-II-
cum-Special Judge (Excise), Sitamarhi in Kanhauli PS Case No.
143 of 2020, subject to the conditions laid down in Section 438(2)
of the Code of Criminal Procedure, 1973 and further, (i) that one
of the bailors shall be a close relative of the petitioner no. 2 and
(ii) that the petitioner no. 2 shall co-operate with the Court and
police/prosecution. Failure to co-operate shall lead to cancellation
of her bail bonds.
10. It shall also be open for the prosecution to bring any
violation of the foregoing conditions by the petitioner no. 2, to the
notice of the Court concerned, which shall take immediate action
on the same after giving opportunity of hearing to the petitioner
no. 2.
11. Prayer for pre-arrest bail of petitioner no. 1, namely,
Dabloo Kha @ Sadre Alam Kha, stands rejected.
12. The petition stands disposed of in the
aforementioned terms.
(Ahsanuddin Amanullah, J.)
P. Kumar
AFR/NAFR
U
T
