Sujeet Kumar vs The State Of Bihar
2021 Latest Caselaw 890 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No. 31637 of 2020
  Arising Out of Excise Case No.-117 C2 Year-2020 Thana- GOVERNMENT OFFICIAL
                               COMP. District- Begusarai
======================================================

Sujeet Kumar, aged about 35 years, Sex- Male, Son of Kailash Yadav, Resident of Village - Bariyahi, PS- Barauni, (Chakia OP), District - Begusarai.

... ... Petitioner/s Versus The State of Bihar ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Bipin Kumar, Advocate For the State : Mr. Satyendra Prasad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 12-02-2021

Heard Mr. Bipin Kumar, learned counsel for the

petitioner and Mr. Satyendra Prasad, learned Additional Public

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

2. The petitioner apprehends arrest in connection with

Excise Case No. 117C2 of 2020 dated 11.07.2020, instituted under

Section 30(a) of the Bihar Prohibition and Excise Act, 2016

(hereinafter referred to as the 'Act').

3. The allegation against the petitioner is that from his

gumti 54.500 litres of countrymade liquor in a plastic jerkin and a

bag was found and he managed to run away.

4. Learned counsel for the petitioner submitted that the

recovery is not from the conscious possession of the petitioner and

that the gumti does not belong to him.

Patna High Court CR. MISC. No.31637 of 2020 dt.12-02-2021

5. Learned APP submitted that the application is not

maintainable in view of bar of Section 76(2) of the Act which

prohibits an application under Section 438 of the Code of

Criminal Procedure, 1973, if an offence is made out under the Act.

It is submitted that since the allegation is that from the gumti of

the petitioner recovery of liquor has been made, the veracity of the

same can only be judged during trial but an offence is prima facie

made out under the Act.

6. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

finds substance in the objection of learned APP. As the allegation

is that from the gumti of the petitioner, there is recovery of liquor,

an offence is made out under the Act and, thus, the present

application would not be maintainable.

7. Accordingly, the application stands disposed off as not

maintainable.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T