Ruban Ram vs The State Of Bihar
2021 Latest Caselaw 1567 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL MISCELLANEOUS No.32052 of 2020
     Arising Out of PS. Case No.-558 Year-2020 Thana- KHAGARIA District- Khagaria
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Ruban Ram, aged about 37 years, Gender-Male, Son of Uttam Ram, resident of Village - Barai, Ward No. 07, P.S.- Khagaria (Gangore O.P.), District - Khagaria.

... ... Petitioner/s

Versus

The State of Bihar ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. N K Agrawal, Senior Advocate with Mr. Vijay Anand, Advocate For the State : Mr. Abhay Kumar No. 1, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 19-03-2021

Heard Mr. N K Agrawal, learned senior counsel along

with Mr. Vijay Anand, learned counsel for the petitioner and

Mr. Abhay Kumar No. 1, learned Additional Public Prosecutor

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

2. The petitioner apprehends arrest in connection with

Khagaria (Gangaur) PS Case No. 558 of 2020 dated

08.08.2020, instituted under Section 30(a) of the Bihar

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

'Act').

3. As per the FIR, there is recovery of 182 litres of

foreign liquor from the house of the petitioner.

4. Learned counsel for the petitioner submitted that Patna High Court CR. MISC. No.32052 of 2020 dt.19-03-2021

the recovery is not from the conscious possession of the

petitioner and the area from which it was recovered also does

not belong exclusively to the petitioner. Learned counsel

submitted that the petitioner does not have any criminal

antecedent.

5. Learned APP raised a preliminary objection and

submitted that the 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 as there is allegation of

recovery from the house of the petitioner, an offence is made

out under the Act.

6. Having considered the facts and circumstances of

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

Court finds substance in the objection of learned APP. Since

allegation is that recovery is from the house of the petitioner,

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

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

7. Accordingly, the application stands disposed off as

not maintainable.

8. 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 Patna High Court CR. MISC. No.32052 of 2020 dt.19-03-2021

same shall be considered on its own merits, in accordance with

law, without being prejudiced by the present order.

(Ahsanuddin Amanullah, J)

J. Alam/-

AFR/NAFR U T