Pramod Rai vs The State Of Bihar
2021 Latest Caselaw 3031 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL MISCELLANEOUS No.36629 of 2020
   Arising Out of PS. Case No.-18 Year-2020 Thana- RAJEPUR District- East Champaran
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Pramod Rai, aged about 25 years (M), son of Ramchandra Rai, resident of Village - Saghari, P.S. - Rajepur, District - East Champaran ... ... Petitioner/s

Versus

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

For the Petitioner/s : Mr. Abhishek Kumar, Advocate For the Opposite Party/s : Mr. Md. Arif, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 05-07-2021

The matter has been heard via video conferencing.

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

petitioner and Mr. Md. Arif, learned Additional Public

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

3. The petitioner apprehends arrest in connection with

Rajepur PS Case No. 18 of 2020 dated 19.02.2020, instituted

under Sections 272, 273 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 from his

stall (gumti), of eggs and biscuits, when the police on secret

information went there, one person fled away from the said stall

and on search, five litres of countrymade liquor kept in a gallon Patna High Court CR. MISC. No.36629 of 2020 dt.05-07-2021

was recovered which was seized.

5. Learned counsel for the petitioner submitted that

the recovery is not from the house of the petitioner or from his

conscious possession and that the said stall does not belong to

the petitioner. It was submitted that the petitioner has no

concern either with the said stall or the recovered liquor. It was

also submitted that the petitioner has no criminal antecedent.

6. Learned APP submitted that from the FIR itself it is

clear that the stall belonged to the petitioner and when the police

went there on information, one person had run away and there

has been recovery of countrymade liquor from the stall. It was

submitted that as per the allegation, as offence is made out

against the petitioner under the Act, the present application

would not be maintainable as Section 76(2) of the Act bars

filing of an application under Section 438 of the Code of

Criminal Procedure, 1973.

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 the learned APP.

Once it is alleged that there is recovery from the stall belonging

to the petitioner and one person was seen running away when

the police went and he has been identified to be the petitioner, as Patna High Court CR. MISC. No.36629 of 2020 dt.05-07-2021

has been submitted by learned APP, an offence under the Act is

prima facie made out and, thus, the bar of Section 76(2) of the

Act would come into play and the present petition shall not be

maintainable.

8. For the reasons aforesaid, the petition stands

dismissed as not maintainable.

(Ahsanuddin Amanullah, J)

J. Alam/-

AFR/NAFR U T