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2021 DIGILAW 429 (PAT)

Mithilesh Yadav v. State Of Bihar

2021-06-09

AHSANUDDIN AMANULLAH

body2021
JUDGMENT Ahsanuddin Amanullah, J. - The matter has been heard via video conferencing. 2. The case has been heard out of turn on the basis of motion slip filed by learned counsel for the petitioner yesterday, which was allowed. 3. Heard Mr. Pramod Mishra, learned counsel for the petitioner and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor (hereinafter referred to as the 'APP') for the State. 4. The petitioner apprehends arrest in connection with Sour Bazar PS Case No. 252 of 2020 dated 02.07.2020, instituted under Sections 272, 273 of the Indian Penal Code and 30(a) of the Patna High Court CR. MISC. No.36567 of 2020 dt.09-06-2021 Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the 'Act'). 5. The allegation against the petitioner is that when police on information that liquor was being kept behind a bush reached the spot with the local Chowkidar, a person was seeing carrying a carton but he left the carton and ran away and the Chowkidar had identified him to be the petitioner and from the carton, 45 bottles of one brand and 18 bottles of another brand liquor totalling 11.34 litres has been recovered. 6. Learned counsel for the petitioner submitted that in the FIR itself, it is mentioned that only on information that liquor was being kept behind the bushes, the police had gone but no name was taken and further that the Chowkidar being a local person of the village, due to rivalry, has named him at the behest of some other vested interest who has inimical term with the petitioner. 7. Learned APP submitted that the petitioner has a past history of two cases under the Excise Act against him of the year 2011 and 2012 and, thus, he was already in this business from before. Further, it was submitted that under the Act, if an offence is made out, any application under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable and, thus, in Patna High Court CR. MISC. No.36567 of 2020 dt.09-06-2021 the present case when the Chowkidar has specifically identified the petitioner and being a local is supposed to know the identity of persons in his area, prima facie offience is made out under the Act and thus, the bar of Section 76(2) of the Act would apply. 8. MISC. No.36567 of 2020 dt.09-06-2021 the present case when the Chowkidar has specifically identified the petitioner and being a local is supposed to know the identity of persons in his area, prima facie offience is made out under the Act and thus, the bar of Section 76(2) of the Act would apply. 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. As the Chowkidar has identified the petitioner, obviously, prima facie an offence is made out under the Act and bar of section 76(2) of the Act would apply. 9. For reasons aforesaid, the application stands disposed off as not maintainable. 10. However, on submission of learned counsel for the petitioner, it is observed that in the event 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.