Rajendra Pasi @ Rajendar Pasi vs The State Of Bihar
2021 Latest Caselaw 2742 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA

                  CRIMINAL MISCELLANEOUS No.35583 of 2020

     Arising Out of PS. Case No.-57 Year-2020 Thana- GAUTAMBUDHNAGAR District- Siwan

     ======================================================

1. Rajendra Pasi @ Rajendar Pasi, Gender-male, aged about 48 years, Son of

Late Raghunath Pasi

2. Suresh Pasi, Gender-Male, Aged about 51 years, Son of Late Shankar Pasi

Both are Resident of village- Sikanderpur, P.S.- G.B.Nagar, District - Siwan

... ... Petitioner/s

Versus

The State of Bihar

... ... Opposite Party/s

====================================================== Appearance :

For the Petitioner/s : Mr. Javed Aslam, Advocate For the State : Mr. Satya Nand Shukla, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 28-06-2021

The matter has been heard via video conferencing.

2. Heard Mr. Javed Aslam, learned counsel for the

petitioners and Mr. Satya Nand Shukla, learned Additional Public

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

3. The petitioners apprehend arrest in connection with

G.B. Nagar PS Case No. 57 of 2020 dated 06.03.2020, instituted

under Sections 30(a)/34/36/38/41(1) of the Bihar Prohibition and

Excise Act, 2016 (hereinafter referred to as the 'Act'). Patna High Court CR. MISC. No.35583 of 2020 dt.28-06-2021

4. The allegation against the petitioners is that when the

police on information went to the house of petitioner no. 1, 16.5

litres of liquor was recovered whereas from the house of petitioner

no. 2, 10 litres of country made liquor was recovered.

5. Learned counsel for the petitioners submitted that the

so called recovery is not from the conscious possession of the

petitioners and none of his family members were present. It was

submitted that only on suspicion they have been named and further

that they have no criminal antecedent.

6. Learned APP submitted that as per the allegation, the

recovery being from the house of the petitioners, the bar of Section

76(2) of the Act would apply as an offence is made out under the

Act and, thus, the present application itself 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.

8. Once recovery is alleged to be from the house of the

petitioners, prima facie, an offence is made out under the Act and,

thus, the present application under Section 438 of the Code of

Criminal Procedure, 1973 would not be maintainable due to bar of

Section 76(2) of the Act.

Patna High Court CR. MISC. No.35583 of 2020 dt.28-06-2021

9. Accordingly, the application stands dismissed as not

maintainable.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T