Akash Mukhiya vs The State Of Bihar
2021 Latest Caselaw 2392 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL MISCELLANEOUS No.18442 of 2021
    Arising Out of PS. Case No.-213 Year-2020 Thana- BATHNAHA District- Sitamarhi
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Akash Mukhiya, aged about 30 years, Gender- Male, son of Panchu Mukhiya, R/o village- Bathnaha, P.S.- Bathnaha, District- Sitamarhi

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

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

 For the Petitioner/s    :       Mr. Birendra Kumar, Advocate
 For the State           :       Mr. Bharat Lal, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 15-06-2021

The matter has been heard via video conferencing.

2. The case has been taken up out of turn on the basis

of motion slip filed by learned counsel for the petitioner

yesterday, which was allowed.

3. Heard Mr. Birendra Kumar, learned counsel for the

petitioner and Mr. Bharat Lal, learned Additional Public

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

4. The petitioner apprehends arrest in connection with

Bathnaha PS Case No. 213 of 2020 dated 19.090.2020,

instituted under Section 30(a) of the Bihar Prohibition and

Excise Act, 2016 (hereinafter referred to as the 'Act').

5. The allegation against the petitioner is that when the

police had gone to raid the house of his father on information, Patna High Court CR. MISC. No.18442 of 2021 dt.15-06-2021

the petitioner and his brother had run away leaving the bag near

their house after jumping into the pond and upon search of the

bag, 90 bottles of Nepali saufi wine, each containing 300 ml.,

was recovered.

6. Learned counsel for the petitioner submitted that

there is no recovery from the conscious possession of the

petitioner and also not from his house. It was submitted that

there was no occasion for the police to identify him as he was

not known to them. It was submitted that the story of the

petitioner having run away by swimming cannot be believed as

the police party was required to pursue the person who had fled

away but this was not done. Learned counsel contended that

even the seizure has not been effected in accordance with law as

neither the father of the petitioner nor any other family member

has not been made a witness on the seizure list nor any copy of

the same given to them. It was further submitted that the

petitioner has no criminal antecedent.

7. Learned APP submitted that the petitioner has been

specifically identified as the son of Panchu Mukhiya and when

the police reached the spot, he along with his brother, was seen

running away after putting down the sack outside his house

from which there is recovery of liquor. Thus, learned APP Patna High Court CR. MISC. No.18442 of 2021 dt.15-06-2021

submitted that once there is specific identification by the police

itself with regard to identity of the petitioner as also the fact that

he, along with his brother, having left behind a sack and fleeing

away and from the sack there being recovery of liquor, prima

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

Section 76(2) of the Act would come into play and the present

application itself would not be maintainable. Learned APP

submitted that the objection of not having any family member of

the petitioner as the seizure list witness and not serving them

copy of the same does not hold good for the reason that the

recovery was not from inside the house and further that there is

no requirement of the police to make a particular person witness

when the witnesses were co-villagers who had gathered there

and further that since recovery was not from the house of the

petitioner, there was no requirement of handing over a copy of

the seizure list to any of the inmates of the house.

8. Having considered the facts and circumstances of

the case and submissions of learned counsel for the parties, the

Court is not inclined to grant pre-arrest bail to the petitioner.

9. Accordingly, the application stands dismissed, both

on merits as well on the ground of not being maintainable.

10. However, in view of submission of learned counsel Patna High Court CR. MISC. No.18442 of 2021 dt.15-06-2021

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

before the Court below and prays for bail, the same shall be

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

being prejudiced by the present order.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T