Birendar Choudhari vs The State Of Bihar
2021 Latest Caselaw 2214 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL MISCELLANEOUS No. 10240 of 2021
    Arising Out of PS Case No.-337 Year-2020 Thana- AURANGABAD TOWN District-
                                      Aurangabad
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Birendar Choudhari, aged about 35 years, Male Son of Radheshyam Choudhari, Resident of Village-Ornar, PS-Chainpur, District-Palamu, Jharkhand.

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

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

For the Petitioner/s : Mr. Ramakant Sharma, Sr. Advocate with Mr. Rakesh Kumar Sharma, Advocate For the State : Mr. Vinod Shankar Modi, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 02-06-2021

The matter has been heard via video conferencing.

2. The matter has been heard out of turn on the basis of

motion slip filed by learned counsel for the petitioner yesterday,

which was allowed.

3. Heard Mr. Ramakant Sharma, learned senior counsel

along with Mr. Rakesh Kumar Sharma, learned counsel for the

petitioner and Mr. Vinod Shankar Modi, learned Additional Public

Prosecutor (hereinafter referred to as the 'Act').

4. The petitioner apprehends arrest in connection with

Aurangabad (T) PS Case No. 337 of 2020 dated 21.09.2020,

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.10240 of 2021 dt.02-06-2021

5. The allegation against the petitioner is that the bolero

jeep which was seized by the police on 21.09.2020 with 1410

litres of countrymade liquor, was owned by him.

6. Learned counsel for the petitioner submitted that he is

a resident of district of Palamu in the State of Jharkhand whereas

seizure was made in the town of Aurangabad in the State of Bihar

and the same was a commercial vehicle. It was submitted that the

actual articles transported on his commercial vehicle are not

known to the petitioner as it is the driver who is in-charge of the

same and the petitioner was only getting the earning out of the

use, but had no knowledge, much less, had consented to any

illegal business or material being transported, including the

countrymade liquor. It was submitted that seizure has not been in

accordance with law as there are no independent witnesses to

prove that the allegation of recovery from the said vehicle is

correct since both the witnesses are constables who were members

of the raiding party. Learned counsel submitted that the petitioner

has no criminal antecedent.

7. Learned APP submitted that the present application is

not maintainable in view of bar of Section 76(2) of the Act as an

offence is made out. It was submitted that Section 32 of the Act

deals with presumption with regard to commission of offence and Patna High Court CR. MISC. No.10240 of 2021 dt.02-06-2021

the presumption is that the owner of the vehicle is also involved,

unless proved otherwise. It was, thus, submitted that for proving it

otherwise, the stage is trial, but for the present, as prima facie an

offence is made out under the Act, the bar of Section 76(2) of the

Act shall apply to the arrest of any person on an accusation of

having committed an offence under the Act.

8. 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. The language of

Section 76(2) of the Act is very clear that an application under

Section 438 of the Code of Criminal Procedure, 1973 shall not

apply to any case involving the arrest of any person on an

accusation of having committed an offence under the Act. Thus,

there being an accusation, in terms of Section 32 of the Act, when

it is admitted that the vehicle from which seizure has been made,

belonged to the petitioner, clearly the bar of maintainability would

apply.

9. For reasons aforesaid, the application stands disposed

off as not maintainable.

10. However, in view of submissions 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 considered, Patna High Court CR. MISC. No.10240 of 2021 dt.02-06-2021

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

prejudiced by the present order.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T