Mina Devi vs The State Of Bihar
2021 Latest Caselaw 3406 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.37234 of 2020
  Arising Out of PS. Case No.-245 Year-2020 Thana- BIBHUTIPUR District- Samastipur
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Mina Devi (Female), aged about 45 years, Wife of Kailash Chaudhary Resident Of Village - Singhiya Ghat, Police Station - Bibhutipur, District - Samastipur

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

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

For the Petitioner/s : Mr. Mirityunjay Kumar, Advocate For the State : Mr. Damodar Prasad Tiwary, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 16-07-2021

The matter has been heard via video conferencing.

2. Heard Mr. Mirityunjay Kumar, learned counsel for

the petitioner and Mr. Damodar Prasad Tiwary, learned

Additional Public Prosecutor (hereinafter referred to as the

'APP') for the State.

3. The petitioner apprehends arrest in connection with

Vibhutipur PS Case No. 245 of 2020 dated 22.08.2020,

instituted under Sections 272/2734 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 with

regard to recovery made by the police of 5507.640 litres of Patna High Court CR. MISC. No.37234 of 2020 dt.16-07-2021

foreign liquor from one Truck, one Bolero pick-up, one

Mahindra Scorpio and two motorcycles; one motorcycle was

registered in the name of the petitioner, from which 17.280 litres

of foreign liquor was recovered.

5. Learned counsel for the petitioner submitted that

she is a lady aged 45 years and has absolutely no connection

with such seizure as it cannot be expected and believed that she

would be driving the motorcycle. It was submitted that because

her husband lives outside, as the motorcycle was lying, she had

given it to her neighbour, who had some work and if there has

been misuse of the vehicle she should not be held responsible. It

was submitted that the petitioner also does not have any other

criminal antecedent. Learned counsel submitted that the owner

of the Scorpio, namely, Ram Vinay Singh, from which there has

been huge amount of recovery has been granted anticipatory

bail by a coordinate bench by order dated 29.04.2021 in Cr.

Misc. No. 39116 of 2020.

6. Learned APP submitted that the present petition is

not maintainable for the reason that an offence is made out

under the Act since admittedly, one of the motorcycles from

which there has been recovery of liquor, belongs to the

petitioner and once that is the position, the bar of Section 76(2) Patna High Court CR. MISC. No.37234 of 2020 dt.16-07-2021

of the Act would apply and the present petition seeking pre-

arrest bail under Section 438 of the Code of Criminal Procedure,

1973 would not be maintainable. Learned APP further submitted

that in the case of the owner of the Scorpio namely, Ram Vinay

Singh, the Court had not considered the issue of maintainability,

but in the present case such issue being raised with regard to the

very maintainability in law of the present petition, the Court

may consider the same before going into the factual merits of

the case.

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. Once, as

per the FIR, which is admitted, that from the motorcycle which

belongs to the petitioner, there is recovery of liquor, an offence

would, prima facie, be made out under the Act and, thus, bar of

Section 76(2) of the Act with regard to maintainability of the

present petition would come into play.

8. For reasons aforesaid, the petition stands dismissed

as not maintainable.

9. However, in view of submission of learned counsel

for the petitioner, it is observed that if the petitioner appears

before the Court below and prays for bail, the same shall be Patna High Court CR. MISC. No.37234 of 2020 dt.16-07-2021

considered on its own merits, in accordance with law, without

being prejudiced by the present order, preferably on the same

day.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T