Gautam Nirala @ Gautam Viraji @ ... vs The State Of Bihar
2021 Latest Caselaw 2955 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.37124 of 2020
       Arising out of PS. Case No.-144 Year-2019 Thana- FULKAHA District- Araria
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Gautam Nirala @ Gautam Viraji @ Gautam Biraji, Male, aged about 23 years, S/o Shiv Narayan Biraji @ Shivam R/o village- Achra, P.S.- Fulkaha, District- Araria

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

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

For the Petitioner/s : Mr. Mrityunjay Kumar, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 02-07-2021 The matter has been heard via video conferencing.

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

petitioner and Mr. Jharkhandi Upadhyay, learned Additional Public

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

3. The petitioner apprehends arrest in connection with

Fulkaha PS Case No. 144 of 2019 dated 13.09.2019, instituted

under Sections 223, 224 and 225 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 is that when

police reached the house of co-accused Jalo Oraon, Lalu Kumar

Yadav and petitioner were caught in inebriated state after having

consumed liquor and on search from the house of Jalo Oraon, 4 Patna High Court CR. MISC. No.37124 of 2020 dt.02-07-2021

litres of country-made liquor and from the pocket of Lalu Kumar

Yadav one mobile set and from the pocket of the petitioner also a

mobile set was recovered and that the petitioner was not able to

give any satisfactory answer with regard to the recovered article

and that the petitioner along with Lalu Kumar Yadav was arrested

and put on the police vehicle, but at 4 PM near Ghurna More on

the pitch road, co-accused is said to have jumped and steered the

vehicle to the left and to avoid hitting persons sitting near the road,

the driver applied brake and stopped the car and the mother of the

co-accused Lalu Kumar Yadav had taken out the keys and thrown

it and had opened the door of the police vehicle and had managed

to set free Lalu Kumar Yadav and the petitioner.

5. Learned counsel for the petitioner submitted that he

was not caught with any liquor and only on suspicion he was

arrested by the police. It was further submitted that no recovery of

liquor has been made from his possession and that the petitioner

has no criminal antecedent.

6. Learned APP submitted that as per the FIR itself it is

clear that the petitioner was caught in an inebriated state and from

his possession a mobile phone was recovered and most

importantly, even though the police had made him sit in the

vehicle and he was being taken away, due to interference by the Patna High Court CR. MISC. No.37124 of 2020 dt.02-07-2021

family members of co-accused Lalu Kumar Yadav, the petitioner

also had fled away from the police vehicle, which clearly indicates

that he was guilty and to save himself had run away. Thus, learned

APP submitted that once on the ground that the petitioner had

consumed liquor he was arrested by the police initially, an offence

is made out under the Act and the present application under

Section 438 of the Code of Criminal Procedure, 1973 would not be

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

7. 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 that once the

petitioner was caught having been found to have consumed liquor

the same being an offence under the Act, the bar of Section 76(2)

of the Act would come into play.

8. For the reasons aforesaid, the present application

stands dismissed, both on merits as well as on the ground of non-

maintainability.

(Ahsanuddin Amanullah, J)

Vikash/-

AFR/NAFR U T