Bittu Yadav vs The State Of Bihar
2021 Latest Caselaw 3199 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.37131 of 2020
  Arising Out of PS. Case No.-352 Year-2020 Thana- SIWAN MUFFASIL District- Siwan
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Bittu Yadav, male, aged about 22 years, Son of Baldev Yadav Resident of Village- Jiyay, P.S.- Siwan Muffasil, Distt- Siwan

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

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

For the Petitioner/s : Mr. Ajay Kumar Tiwary, Advocate For the State : Mr. Arun Kumar Pandey, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 08-07-2021

The matter has been heard via video conferencing.

2. Heard Mr. Ajay Kumar Tiwary, learned counsel for

the petitioner and Mr. Arun Kumar Pandey, learned Additional

Public Prosecutor (hereinafter referred to as the 'APP') for the

State.

3. The petitioner apprehends arrest in connection with

Siwan Muffasil PS Case No. 352 of 2020 dated 07.08.2020,

instituted under Sections 272/273 of the Indian Penal Code and

30(a)/41(1) of the Bihar Prohibition and Excise Act, 2016

(hereinafter referred to as the 'Act').

4. The allegation against the petitioner is that when the

police on information that the petitioner was dealing in liquor went

to his house, at the entrance, three motorcycles were there and four Patna High Court CR. MISC. No.37131 of 2020 dt.08-07-2021

persons tried to run away but one person was caught and from

each of the three motorcycles, 72 litres of liquor was recovered

and the person caught has taken the name of the petitioner

specifically as the person who had provided the liquor.

5. Learned counsel for the petitioner submitted that there

is no recovery from the conscious possession of the petitioner and

whatever recovery is said to have taken place is from the three

motorcycles which were parked outside his house with which he

has no connection. It was submitted that the petitioner has no other

criminal antecedent.

6. Learned APP submitted that the police had got

specific information that in the house of the petitioner there was

going to be delivery of liquor and when they went there, at the

entrance of the house there has been recovery of three motorcycles

having liquor. Thus, it was submitted that there is direct nexus of

the recovered liquor to the petitioner, both because of prior

information and the factum of recovery being made from the

motorcycles found outside the main entrance of the house of the

petitioner and also that the person caught has stated that it was the

petitioner who had provided the liquor. Accordingly, it was

submitted that the present petition also is not maintainable due to Patna High Court CR. MISC. No.37131 of 2020 dt.08-07-2021

bar of Section 76(2) of the Act which prohibits 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 learned APP. Since the

allegation, as per the FIR itself, does make out a prima facie case

under the Act against the petitioner, bar of Section 76(2) of the Act

would come into play.

8. For reasons aforesaid, the present petition stands

dismissed as not maintainable.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T