Vijay Rai vs The State Of Bihar
2021 Latest Caselaw 1456 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.33883 of 2020
    Arising Out of PS. Case No.-161 Year-2019 Thana- KUDHNI District- Muzaffarpur
======================================================

Vijay Rai, aged about 30 years (Male), S/o Nanda Rai @ Nandlal Rai Resident of Village-Sakari Saraiya Bintoliya, P.S.-Kudhni, District- Muzaffarpur.

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

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

For the Petitioner/s    :       Mr. Raju Kumar, Advocate
For the State           :       Mr. Dashrath Mehta, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 15-03-2021

The matter has been heard via video conferencing.

2. Heard Mr. Raju Kumar, learned counsel for the

petitioner and Mr. Dashrath Mehta, learned Additional Public

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

3. The petitioner apprehends arrest in connection with

Kudhni (Turki OP) PS Case No. 161 of 2019 dated 16.03.2019,

instituted under Sections 147/ 148/ 149/ 341/ 323/ 353/ 427/ 337/

338/ 504 of the Indian Penal Code; 30(a)/43/45 of the Bihar

Prohibition and Excise Act, 2016 (hereinafter referred to as the

'Act') and 3(1)(v)(s) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989.

4. The allegation against the petitioner is that from his

house 4.290 litres of illicit foreign liquor was recovered.

Patna High Court CR. MISC. No.33883 of 2020 dt.15-03-2021

5. Learned counsel for the petitioner submitted that the

petitioner has been falsely implicated and is innocent. It was

further submitted that the petitioner was not apprehended at the

spot. Learned counsel submitted that even the so-called recovered

liquor did not belong to the petitioner. Learned counsel submitted

that co-accused Ramesh Rai; Uday Rai @ Uday Kumar and

Awadhesh Rai have been granted anticipatory bail by a coordinate

bench on 19.09.2019 in Cr. Misc. No. 44414 of 2019.

6. Learned APP submitted that from the house and field

of the petitioner there has been recovery of liquor and he was also

responsible for the attack on the police party and beating up of

Chowkidar and the police personnel who had to return after

leaving the police jeep at the spot. Learned counsel submitted that

there has been no recovery from the premises of co-accused who

have been granted anticipatory bail by a coordinate bench. It was

further submitted that the present application is also not

maintainable in view of bar of Section 76(2) of the Act as prima

facie offence is made out under the Act.

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. The recovery

being said to be from the house and field of the petitioner, the Patna High Court CR. MISC. No.33883 of 2020 dt.15-03-2021

present application under Section 438 of the Code of Criminal

Procedure, 1973 is not maintainable in view of bar of Section

76(2) of the Act.

8. Accordingly, the application stands disposed off as not

maintainable.

9. However, in view of submission of learned counsel

for the petitioner, if the petitioner surrenders before the Court

below and prays for bail within four weeks from today, 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