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2021 DIGILAW 861 (PAT)

Shambhu Manjhi v. tate of Bihar

2021-08-23

AHSANUDDIN AMANULLAH

body2021
JUDGMENT : The matter has been heard via video conferencing. 2. Heard Mr. Ashok Kumar, learned counsel for the petitioner no. 2 and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’) for the State. 3. The petition was disposed of as withdrawn as far as petitioner no. 1, namely, Shambhu Manjhi was concerned on 22.07.2021 and is restricted to petitioner no. 2, namely, Dudhnath Manjhi. 4. The petitioner no. 2 apprehends arrest in connection with Jamo Bazar PS Case No. 178 of 2020 dated 28.08.2020, instituted under Sections 272, 273, 308/38 of the Indian Penal Code and 30(a) of the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the ‘Act’). 5. On submissions made by learned counsel for the petitioner on 22.07.2021, the Court had asked learned APP to obtain the up-to-date legible photo copy of the entire case diary of the present case from the Superintendent of Police, Siwan and also a specific report as to whether the place from which recovery of liquor has been shown, as far as petitioner no. 2 is concerned, was owned by him and if not, by whom. The Court had also granted interim protection to the petitioner no. 2. 6. Today, learned APP submitted that he has got copy of the case diary as also the said report. It was submitted that the same discloses that there are two other cases against the petitioner no. 2, one of which is under the Act and also one other case against the petitioner no. 1. Further, it was submitted that the palani from which recovery was made is recorded in the name of the ancestor of the petitioner no. 2. 7. When the Court called upon learned counsel for the petitioners to explain as to why there was suppression with regard to the criminal antecedent of the petitioners, he had no reply. Learned counsel submitted that he may be permitted to withdraw the petition for surrendering before the Court below. 8. Learned APP submitted that the present petition is also not maintainable due to bar of Section 76(2) of the Act as recovery is from the palani owned by the petitioner no. 2. 9. 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. Learned APP submitted that the present petition is also not maintainable due to bar of Section 76(2) of the Act as recovery is from the palani owned by the petitioner no. 2. 9. 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 there is recovery from the palani owned by the petitioner no. 2, prima facie an offence is made out under the Act and, thus, the present petition would not be maintainable due to bar of Section 76(2) of the Act. 10. The petition besides being not maintainable, is also required to be dismissed with cost for the reason that a patently false stand was taken before the Court that the palani from which recovery was made did not belong to petitioner no. 2 and also for having made a categorical statement in paragraph no. 3 that the petitioners have got fair and clean antecedent. Both were within the personal knowledge of the petitioners and not disclosed and a wrong statement having been made, the Court is required to take a strict view. 11. Accordingly, the petition stands dismissed as not maintainable with cost of Rs. 5,000/- to be paid by petitioner no. 2, namely, Dudhnath Manjhi and Rs. 2,500/-to be paid by the petitioner no. 1, namely, Shambhu Manjhi. The same be deposited latest by 13th September, 2021 and receipt filed by 16th September, 2021, by way of Bank draft in favour of the Registrar General of this Court, who shall deposit it in the account in which such deposits are being kept in terms of order dated 12.11.2020 passed in CWJC No. 2106 of 2019, failing which Registry shall place the matter before the Bench for necessary orders. 12. Interim protection granted to the petitioner no. 2 under order dated 22.07.2021, stands vacated.