Bhushan Patel vs The State Of Bihar
2021 Latest Caselaw 2064 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.34626 of 2020
   Arising out of PS. Case No.-75 Year-2020 Thana- ADAPUR District- East Champaran
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Bhushan Patel aged about 30 years (Male) S/o Sona Lal Patel @ Sonalal Raut R/o village- Katakenava, P.S.- Adapur, District- East Champaran

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

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

For the Petitioner/s    :        Mr. Vijay Shankar Shrivastava, Advocate
For the State           :        Mr. Akbar Ali, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 21-05-2021 The matter has been heard via video conferencing.

2. Heard Mr. Vijay Shankar Shrivastava, learned counsel

for the petitioner and Mr. Akbar Ali, learned Additional Public

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

3. The petitioner apprehends arrest in connection with

Adapur PS Case No. 75 of 2020 dated 09.03.2020, instituted under

Sections 272/273 of the Indian Penal Code and 30(a) of the Bihar

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

'Act').

4. The allegation against the petitioner is that 230 bottles

each of 330 ml nepali country-made liquor kept in a sack totalling

69 litres was recovered from the room of the petitioner.

5. Learned counsel for the petitioner submitted that the

petitioner has been falsely implicated due to local village politics.

Patna High Court CR. MISC. No.34626 of 2020 dt.21-05-2021

Learned counsel submitted that the person who was caught by the

police disclosed that he had brought 230 bottles of 330 ml each of

Nepali country-made wine on a motorcycle and had handed over

the same to the petitioner. It was submitted that when the police

went to the house of the petitioner such recovery was shown, but

the same is false implication as it was kept by others without

knowledge or permission of the petitioner. Further, he submitted

that nothing has been recovered from the conscious possession of

the petitioner and the room from where alleged recovery has been

made does not belong to him.

6. Learned APP submitted that the present application is

not maintainable in view of bar of Section 76(2) of the Act which

does not permit filing of an application under Section 438 of the

Code of Criminal Procedure, 1973, as prima facie offence is made

out under the Act, since recovery has been made from the room of

the petitioner.

7. Having considered the facts and circumstances of the

case and submissions of learned counsel, the Court finds substance

in the contention of learned APP with regard to maintainability.

Recovery having been made from the room of the petitioner would

prima facie constitute an offence under the Act and under the

circumstances the present application.

Patna High Court CR. MISC. No.34626 of 2020 dt.21-05-2021

8. For the reasons aforesaid, the application stands

disposed off as not maintainable.

9. However, on submission of learned counsel for the

petitioner, the Court would observe, 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)

Vikash/-

AFR/NAFR U T