Ajay Jamadar vs The State Of Bihar
2021 Latest Caselaw 1827 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.32840 of 2020
          Arising Out of PS. Case No.-434 Year-2020 Thana- ISLAMPUR District- Nalanda
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1. Ajay Jamadar, aged about 30 years, Male, Son of Soren Jamadar

2. Jitendra Jamadar, aged about 32 years, Male, son of Late Kameshwar Jamadar

Both resident of village - Kailashpuri, P.S. - Islampur, District - Nalanda.

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

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

For the Petitioner/s : Mr. Pankaj Kumar, Advocate For the State : Mr. Md. Mushtaque Alam, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 26-03-2021

Heard Mr. Pankaj Kumar, learned counsel for the

petitioners and Mr. Md. Mushtaque Alam, learned Additional

Public Prosecutor (hereinafter referred to as the 'APP') for the

State.

2. The petitioners apprehend arrest in connection with

Islampur PS Case No. 434 of 2020 dated 28.07.2020, instituted

under Section 30(a) of the Bihar Prohibition and Excise Act, 2016

(hereinafter referred to as the 'Act').

3. As per the FIR, the police, upon secret information,

raided the house of the petitioners and from the house of

petitioner no. 1, five litres of country-made wine was recovered as Patna High Court CR. MISC. No.32840 of 2020 dt.26-03-2021

also five litres illegal liquor was recovered from the house of

petitioner no. 2.

4. Learned counsel for the petitioners submitted that the

house is abandoned and they do not live there. It was submitted

that the petitioners do not have any criminal antecedent.

5. Learned APP raised a preliminary objection and

submitted that once liquor is recovered from the house of the

petitioners, 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.

6. 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. As recovery

admittedly is from the house of the petitioners, the present

application would not be maintainable.

7. Accordingly, the application stands disposed off as not

maintainable.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR U T