The recovery was made from the premises owned by the petitioner, prima facie an offense is made out under the Bihar probation excise act, 2016: High court of Patna
The petitioner was taken into custody after committing an offense under section 30 of the Bihar Prohibition and Excise Act, 2016, “Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor”. This present petitioner is in connection with Manigachi PS Case No. 136 of 2020 dated 24.06.2020. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 21st of August 2021 in the case of Shravan Roy @ Sharvan Rai and others versus the state of Bihar criminal miscellaneous No.17457 of 2021, Ms. Aprajita Represented as the advocate for the petitioner, and Ms. Pronoti Singh represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the police in Bihar on prior information found out the petitioner and others were dealing with liquor, and hence they visited the spot and when the accused people saw the police approaching, they ran away leaving behind two motorcycles and one person was caught in the process and the police recovered liquor from the petitioner from various places including his hut. The counsel representing the petitioner held the recovery of the liquor was made about 500 meters away from his home and he was absent during the time the police sized the liquor the petitioner was elsewhere with his wife at the primary Health Centre, as his wife was giving birth and therefore the petitioner has no connection with regard to the recovered liquor, further, the counsel held that the co-accused, in this case, one Mr. Suraj Kumar Ray has been granted the anticipatory bail by the courts in the order passes on 25.06.2021 in Criminal  Miscellaneous No. 17100 of 2021 The additional public prosecutor brought to light that this petition under Section 438 of the Code of Criminal Procedure, 1973 cannot be maintainable due to bar of Section 76(2) of the Bihar prohibition excise act, 2016, “Notwithstanding anything mentioned in Section-438 of Code of Criminal Procedure, 1973  shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offense under this Act.” Since the recovery of the liquor was made in the premises of the petitioner which is his hut and therefore it is considered an offense under the Bihar prohibition excise act 2016, and regarding granting anticipatory bail for the co-accused Mr. Suraj Kumar Ray was because there was no liquor recovered from his premises and henceforth was granted bail however the scenario is different with the petitioner and must be held liable for the same.
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.174521 Arising Out of PS. Case No. 136 Year 2020 Thana MANIGACHI District Darbhanga Shravan Roy @ Sharvan Rai @ Sharvan Kumar Rai aged about 35 years Son of Jungle Roy @ Khartar Ray Resident of Village Bhattpura P.S. Manigachi District Darbhanga The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Ms. Aprajita Advocate Ms. Pronoti Singh APP Date : 21 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 09.08.2021 which was allowed 3. Heard Ms. Aprajita learned counsel for the petitioner and Ms. Pronoti Singh learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State 4. The petitioner apprehends arrest in connection with Manigachi PS Case No. 1320 dated 24.06.2020 instituted under Section 30(a) of the Bihar Prohibition and Excise Act 2016 hereinafter referred to as the ‘Act’ 5. As per the allegation when the police on prior information that the petitioner and others were dealing in illicit Patna High Court CR. MISC. No.174521 dt.21 08 2021 liquor went to the spot some persons ran away leaving behind two motorcycles and one person was caught and there was recovery and upon his disclosure the police recovered liquor from various places including straw hut of the petitioner 6. Learned counsel for the petitioner submitted that the recovery is about 500 metres away from the house of the petitioner and that he was not present at the time of seizure as he was with his wife at Primary Health Centre during child birth. Learned counsel submitted that the petitioner has no connection with the recovered liquor and has no other criminal antecedent. Further it was submitted that similarly situated co accused Suraj Kumar Ray has been granted anticipatory bail by a coordinate bench by order dated 25.06.2021 passed in Cr. Misc. No. 171021 7. Learned APP submitted that there is recovery from the premises belonging to the petitioner and thus offence is made out under the Act and therefore the present petition under Section 438 of the Code of Criminal Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act. Further it was submitted that there has been no recovery from the premises of co accused Suraj Kumar Ray and only on the statement of the arrested co accused he has been implicated in the present case and Patna High Court CR. MISC. No.174521 dt.21 08 2021 thus the petitioner cannot seek parity with co accused Suraj 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 the recovery is from the premises owned by the petitioner prima facie an offence is made out under the Act and thus bar of Section 76(2) of the Act would apply 9. Accordingly the petition stands dismissed as not (Ahsanuddin Amanullah J