Heard learned counsel for the petitioner, learned counsel appearing on behalf of Union of India and learned counsel appearing on behalf of the State.

2. The petitioner sole accused of G.O. Case No. 372 of 2016 registered for the offence under Section 47(a) of the Bihar Excise (Amendment) Act, 2016 (hereinafter referred to as the ‘Excise Act’) has filed the instant application for transfer of the said case from the court of the learned Chief Judicial Magistrate, Nawada where presently pending to the military court i.e., Court Martial at Ranchi.

3. Before moving this Court, the petitioner filed a petition for transfer the said case to the Court-Martial at Ranchi on the ground that petitioner is a military personnel governed by the Army Act, 1950 (hereinafter referred to as the ‘Act’) to be tried by Court-Martial for committing civil offence, but the learned Chief Judicial Magistrate, Nawada rejected the prayer on the ground that petitioner being an accused under the Excise Act and the offence under Section 47(a) of the Excise Act is considered only in the State of Bihar and not in other Sates; moreover, it is also not an offence in defence service and exclusively triable by a Special Court.

4. The brief fact giving rise to the case is that petitioner, Ramesh Kumar Choudhary, Lance Nayak bearing No. 15569488F (House Keeper), serving in the Indian Army, presently posted at 104 Engr. Regt. (PVC) Deepa Toli Cant. Ranchi under Commanding Officer, Mr. Atul Bhardwaj, Colonel of the said Regiment, while travelling on 13.01.2016 in a private bus, the said bus was checked by the Sub-Inspector of Excise Department in the territorial jurisdiction of Rajauli in the Nawada District of State of Bihar and during checking, the petitioner was found carrying 18 bottles of foreign liquor of “While Hall” brand each containing 750 ml and also 09 bottles of “Vodka Magic Moment” each containing 750 ml of foreign liquor, so in total 20.250 litres of foreign liquor was recovered from the possession of the petitioner, as the same was being carried in suit case by the petitioner. As per allegation, the petitioner was apprehended and forwarded to the learned Chief Judicial Magistrate, Nawada on 14.08.2016 and remanded to judicial custody.

5. Mr. N.K. Agrawal, learned senior counsel appearing on behalf of the petitioner submits that petitioner is posted as Lance Nayak in Indian Army under Mr. Atul Bhardwaj, Colonel Commanding Officer in the 104 Engr. Regt. (PVC) Deepa Toli Cant., Ranchi. Being military personnel, he is subject to the Army Act as he is still serving in the Indian Army, so his criminal case is required to be tried by the Court-Martial for committing an offence defined in the Act which also includes. It is further submitted that alleged offence of carrying foreign liquor, which is an offence under the Excise Act, comes under the purview of civil offence defined under the Act and referring to Section 69 of the Act, submits that subject to provision of Section 70 of the Act, any army personnel, who has committed any civil offence at any place in India or beyond, is deemed to be guilty of an offence against this Act and shall be liable to be tried by a Court Martial. Learned counsel further draws attention to Sections 125 and 126 of the Act and submits that in view of Section 125 of the Act, in case a person subject to Army Act commits any civil offence in that eventuality criminal court as well as Court-Martial, both have jurisdiction for enquiry and trial in respect of the said offence, in such situation the Forum of trial of the army personnel is to be decided by the officer commanding the army wherein accused is serving and it is the discretion of the Commanding Officer for taking decision whether such army personnel requires to be tried by the Court-Martial, if it is decided to hold the trial by Court- Martial, in such situation the accused as well as concerned case should be transferred to the concerned Court-Martial of the specific ju