Gulshan Kumar vs The State Of Bihar
2021 Latest Caselaw 3555 Patna

       IN THE HIGH COURT OF JUDICATURE AT PATNA
               CRIMINAL MISCELLANEOUS No. 37706 of 2020
     Arising Out of PS. Case No.-2 Year-2020 Thana- GOVERNMENT OFFICIAL COMP.
                                     District- Samastipur
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Gulshan Kumar, age-25 years, Male Son of Ram Pukar Mahto, Resident of Village/Mohalla - Telni, Ward No. - 9, PS- Bithan, District- Samastipur.

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

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

For the Petitioner/s : Mr. Abhimanyu Sharma, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 20-07-2021

The matter has been heard via video conferencing.

2. Heard Mr. Abhimanyu Sharma, 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

Excise Case No. 02 of 2020 dated 01.01.2020, instituted under

Section 30(a) of the Bihar Prohibition and Excise Act, 2016

(hereinafter referred to as the 'Act').

Patna High Court CR. MISC. No.37706 of 2020 dt.20-07-2021

4. The allegation against the petitioner is that from his

bathan, when police went on information that the work of bottling

of liquor was going on, 135 litres of foreign liquor was recovered.

It has further been stated that on seeing the raiding party, the

petitioner ran away from the spot.

5. Learned counsel for the petitioner submitted that the

recovery is not from the conscious possession of the petitioner as

it is alleged that it is from an open bathan. It was submitted that

the same is open on three sides, on one side there is road and,

thus, who had kept the liquor in his bathan is not known to the

petitioner and he should not be held responsible. Learned counsel

submitted that the petitioner has no other criminal antecedent.

6. Learned APP submitted that under Section 76(2) of

the Act, once the recovery of liquor is from the land which

belongs to the petitioner, an offence being made out under the Act,

the present application under Section 438 of the Code of Criminal

Procedure, 1973, would not be maintainable.

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. Due to recovery

effected from the bathan belonging to the petitioner, prima facie, Patna High Court CR. MISC. No.37706 of 2020 dt.20-07-2021

an offence is made out under the Act and, thus, the bar of Section

76(2) of the Act would come into play.

8. For reasons aforesaid, the petition stands dismissed as

not maintainable.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T