The recovery of contraband from a premises belonging to the accused can constitute a prima facie offence under the Bihar Prohibition and Excise Act, leading to the dismissal of a petition under Section 438 of the Code of Criminal Procedure, 1973.

JUDGMENT

Ahsanuddin Amanullah, J. - The matter has been heard via video conferencing.

2. Heard Mr. Abhishek Kumar, learned counsel for the petitioner and Mr. Md. Arif, learned Additional Public Prosecutor (hereinafter referred to as the 'APP') for the State.

3. The petitioner apprehends arrest in connection with Rajepur PS Case No. 18 of 2020 dated 19.02.2020, instituted under Sections 272, 273 of the Indian Penal Code and 30(a) of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the 'Act').

4. The allegation against the petitioner is that from his stall (gumti), of eggs and biscuits, when the police on secret information went there, one person fled away from the said stall and on search, five litres of countrymade liquor kept in a gallon was recovered which was seized.

5. Learned counsel for the petitioner submitted that the recovery is not from the house of the petitioner or from his conscious possession and that the said stall does not belong to the petitioner. It was submitted that the petitioner has no concern either with the said stall or the recovered liquor. It was also submitted that the petitioner has no criminal antecedent.

6. Learned APP submitted that from the FIR itself it is clear that the stall belonged to the petitioner and when the police went there on information, one person had run away and there has been recovery of countrymade liquor from the stall. It was submitted that as per the allegation, as offence is made out against the petitioner under the Act, the present application would not be maintainable as Section 76(2) of the Act bars filing of an application under Section 438 of the Code of Criminal Procedure, 1973.

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 the learned APP. Once it is alleged that there is recovery from the stall belonging to the petitioner and one person was seen running away when the police went and he has been identified to be the petitioner, as has been submitted by learned APP, an offence under the Act is prima facie made out and, thus, the bar of Section 76(2) of the Act would come into play and the present petition shall not be maintainable.

8. For the reasons aforesaid, the petition stands dismissed as not maintainable.