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IN THE HIGH COURT OF JUDICATURE AT PATNA
Ahsanuddin Amanullah, J.
Dukha Chaudhary @ Dukha Chaudhari – Petitioner
Versus
The State of Bihar - Opposite Party
Criminal Miscellaneous No. 2165 of 2021
Decided On : 23-08-2021
Section 438 - Bail - The court found that the petitioner's apprehension of arrest in connection with a case under the Bihar Prohibition and Excise Act was not maintainable due to the specific bar of Section 76(2) of the Act.
Fact of the Case:
The petitioner apprehends arrest in connection with a case under the Bihar Prohibition and Excise Act based on allegations of selling liquor and the recovery of liquor from the petitioner's hut.
Finding of the Court:
The court found that the petitioner's apprehension of arrest was not maintainable due to the specific bar of Section 76(2) of the Act, as the hut where the recovery was made was in the palani of the petitioner.
Issues: The issue was whether the petitioner's apprehension of arrest in connection with the case under the Bihar Prohibition and Excise Act was maintainable under Section 438 of the Code of Criminal Procedure, 1973.
Ratio Decidendi: The court held that once it was established that the hut where the recovery was made belonged to the petitioner, prima facie an offence would be made out under the Act, and the petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to the specific bar of Section 76(2) of the Act.
Final Decision: The petition stands dismissed as not maintainable.
JUDGMENT :
The matter has been heard via video conferencing.
2. Heard Mr. Manoj Kumar, learned counsel for the petitioner and Mr. Anil Prasad Singh, learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’) for the State.
3. The petitioner apprehends arrest in connection with Pupri PS Case No. 68 of 2020 dated 08.03.2020, instituted under Sections 272 and 273/34 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 and others is that when police on receiving information that some persons were selling liquor near Bailghat Pupri Bazar reached the spot, on seeing the police jeep, 15-20 persons started running away and the Chowkidar took the name of 16 persons, including the petitioner, and further that when the hut of all the accused was searched, liquor was found and specifically from the petitioner’s hut, 2.10 litres of Nepali liquor was seized.
5. Learned counsel for the petitioner submitted that only on suspicion he has been named and even the so-called recovery from the hut was not correct as the said hut is on the side of the road with which the petitioner has no concern. It was further submitted that the petitioner has no criminal antecedent.
6. On the aforesaid stand of learned counsel for the petitioner, on 22.07.2021, the Court had asked learned APP to obtain the up-to-date legible photocopy of the entire case diary of the present case from the Superintendent of Police, Sitamarhi as also a specific report with regard to whether the hut mentioned in the FIR, from which recovery has been made, belongs to the petitioner.
7. Learned APP submitted that the same has been received. It was submitted that as per the report, the hut was in the palani of the petitioner though the land was Gair Mazarua Aam. Learned APP submitted that the premises of many similarly situated persons was raided and seizure of liquor has been made. It was submitted that once the recovery is from the premises belonging to the petitioner, the present petition would not be maintainable due to bar of Section 76(2) of the Act.
8. 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. Once, both with regard to the FIR as also from the report of the Superintendent of Police, Sitamarhi, it has come that the hut was in the palani of the petitioner, prima facie an offence would be made out under the Act, though rebuttable at the time of trial. However, offence being made out, as has rightly been submitted by learned APP, the present petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to specific bar of Section 76(2) of the Act.
9. Accordingly, the petition stands dismissed as not maintainable.
AI
The specific bar of Section 76(2) of the Bihar Prohibition and Excise Act renders the petition for bail under Section 438 of the Code of Criminal Procedure, 1973 not maintainable if the recovery is f....
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 Secti....
The specific mention of recovery of evidence from the accused's premises in the FIR and seizure list can influence the maintainability of a petition under Section 438 of the Code of Criminal Procedur....
The recovery of illicit liquor from the premises owned by the petitioner prima facie established an offence under the Bihar Prohibition and Excise Act, leading to the dismissal of the petition under ....
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 off....
Alleged recovery of liquor from the petitioner's house constituted an offence under the Bihar Prohibition and Excise Act, 2016, and the bar of Section 76(2) of the Act was found to be applicable, lea....
The application for anticipatory bail may not be maintainable under Section 76(2) of the Bihar Prohibition and Excise Act, 2016, if an offence is prima facie made out due to recovery from the petitio....
Recovery of a large amount of liquor from the petitioner's field constituted an offence under the Bihar Prohibition and Excise Act, 2016, leading to the dismissal of the petitioner's petition under S....
The direct connection of the petitioner to the recovered liquor, as identified by the local Chowkidar, prima facie established an offence under the Act, leading to the dismissal of the petitioner's a....
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