Application stands non-maintainable if the petitioner escapes: High court of Patna

The petitioner was arrested under Section 30(a) 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, whoever, in contravention of any provision of this Act or of any rule, regulation, an order made, notification issued thereunder, or without a valid license, permit or pass issued under this Act, shall be punishable with imprisonment for the term which may extend to life and with fine which may extend to ten lakh rupees.”  This is in connection with Simri PS Case No. 210 of 2020 dated 26.07.2020.

This Judgement was given in the High court Of judicature at Patna by Honorable Mr. Justice Ahsanuddin Amanullah on the 29th  of July 2021 in the case of Birendra Paswan versus the state of Bihar criminal miscellaneous No. 8861 of 2021, Mr. Sanjay Kumar represented as the advocate for the petitioner and Mr. Anant Kumar represented as the additional public prosecutor for the state of Bihar. The proceedings of the court were held through video conference.  

The following are the facts of the case, the police had visited near the brick-kiln of Mina Dubey on prior information and when one motorcycle approached the police without noticing the police the rider of the motorcycle turned around and ran away despite the chase, he managed to escape leaving behind the motorcycle. After search and investigation, the police recovered  60 liters of country-made liquor from the same motorcycle but unfortunately, the petitioner escaped.

The counsel for the petitioner submitted that the name of the petitioner was given out of mere suspicion by the local chowkidar and since the petitioner has not yet been found, it is not relevant and he has no other criminal antecedent as well.

The learned additional public prosecutor held that the police had gone on prior information and the petitioner was the one seen on coming on a motorcycle where there has been a recovery of 60 liters of country-made liquor and the local chowkidar is the one who can identify the people of the locality and since he identified the petitioner who was riding the motorcycle there is no reason to disbelieve him. The prosecutor submitted that when they make a direct connection with the petitioner regarding the recovered liquor. Therefore the present petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to the bar of Section 76(2) of the Act.

The High court of Patna concluded that “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 local Chowkidar has identified the petitioner as the sole person who was riding the motorcycle and had fled away and from which there is the recovery of 60 liters of countrymade liquor, an offense, prima facie, is made out under the Act and therefore, the present application would not be maintainable due to bar of Section 76(2) of the Act. For reasons aforesaid, the petition stands dismissed as not maintainable.

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