Wakil Rai vs The State Of Bihar
2021 Latest Caselaw 910 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.28110 of 2020
           Arising Out of PS. Case No.-165 Year-2020 Thana- VAISHALI District- Vaishali
     ======================================================

1. Wakil Rai, aged about 35 years (Male), S/o Kallu Rai

2. Mukesh Rai @ Mukesh Kumar Rai, aged about 30 years, (Male), S/o Naresh Rai @ Ramnaresh Ray Both Resident of Village- Rahimapur, Brahmsthan, P.S. and District- Vaishali.

... ... Petitioner/s

Versus

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

For the Petitioner/s : Mr. Arvind Kumar Sinha, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 17-02-2021

The matter has been heard via video conferencing.

2. Heard Mr. Arvind Kumar Sinha, learned counsel

for the petitioners and Mr. Jharkhandi Upadhyay, learned In-

charge Additional Public Prosecutor (hereinafter referred to as

the 'APP') for the State as Mr. Akbar Ali, learned APP who is

assigned the brief had requested him to assist the Court.

3. The petitioners apprehend arrest in connection with

Vaishali PS Case No.165 of 2020 dated 24.05.2020 instituted

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

2016 (hereinafter referred to as the 'Act').

4. The allegation against the petitioners is that when Patna High Court CR. MISC. No.28110 of 2020 dt.17-02-2021

the police, on secret information that the petitioners were selling

country made liquor and had kept it in a hutment, went there,

two persons fled away taking advantage of darkness and upon

search of the hutment, 35 litres of country made liquor was

recovered.

5. Earlier, a report was called for from the

Superintendent of Police, Vaishali, with regard to the ownership

of the hut from which recovery of liquor has been effected.

6. Learned counsel for the petitioners submitted that

they were not caught at the spot and only on suspicion they have

been named. It was further submitted that the recovery is from

the place which is common ancestral property of the petitioners

and they cannot be said to be the sole owner for the purpose of

fixing liability. Learned counsel submitted that the petitioners

have no criminal antecedent.

7. Learned APP, on basis of the report of the

Superintendent of Police, Vaishali, submitted that the mother

and wife of the petitioner no.1, Wakil Rai, as also co-villagers

have stated that the hut from which recovery was made belongs

to the petitioner no.1. It was submitted that the present petition

is, thus, not maintainable in view of bar of Section 76(2) of the

Act as recovery is from the hut of the petitioner no. 1 and, thus, Patna High Court CR. MISC. No.28110 of 2020 dt.17-02-2021

a case under the Act is made out against him.

8. With regard to petitioner no.2, it was submitted that

he was also in the business of country made liquor with

petitioner no.1.

9. Having considered the facts and circumstances of

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

Court finds substance in the submissions of learned APP that as

far as petitioner no.1, Wakil Rai, is concerned, the application is

not maintainable in view of bar of Section 76(2) of the Act.

Thus, the application, as far as petitioner no.1, Wakil Rai, is

concerned, is dismissed as not maintainable.

10. As far as petitioner no.2, Mukesh Rai @ Mukesh

Kumar Rai, is concerned, it is not in dispute that he is the cousin

of the petitioner and he has inherited the land adjacent to the

land inherited by the petitioner no.1 on which the hutment was

made. Moreover, in view of there being specific allegation that

two persons fled away under the cover of darkness and there

was information that the petitioners no.1 and 2 were together

doing such business, the Court is not inclined to grant pre-arrest

bail to petitioner no.2, Mukesh Rai @ Mukesh Kumar Rai.

11. Accordingly, the application on behalf of Mukesh

Rai @ Mukesh Kumar Rai also stands dismissed.

Patna High Court CR. MISC. No.28110 of 2020 dt.17-02-2021

12. However, on the prayer made by learned counsel

for the petitioners, the Court would observe that if the

petitioners surrender before the Court below, within four weeks

from today, and pray for bail, the same shall be considered, on

its own merits, in accordance with law, without being prejudiced

by the present order.

(Ahsanuddin Amanullah, J)

J. Alam/-

AFR/NAFR U T