If the recovery has been made from the petitioner’s premises, prima facie, an offence has been made under the Act, the bar of Section 76(2) would apply: High court of Patna

The petitioner was taken into custody 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, or in breach of any condition of any license, permit or pass renewed or authorisation granted thereunder -Manufactures, possesses, buys, sells, distributes, collects, stores, bottles, imports, exports, transports, removes or cultivates any intoxicant, liquor, hemp” This petition Is in connection with Palasi PS Case No. 288 of 2020 dated 06.09.2020.

In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 2nd September 2021 in the case of Most. Susheela Devi versus the state of Bihar, criminal miscellaneous No.10301 of 2021. Mr Mukesh Kumar represented as the advocate for the petitioner, and Mr Zainul Abedin represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference.

The petitioners were accused of keeping illicit liquor in her house for selling which was  10 bottles consisting of 3 litres of Nepali litchi wine. The wine was seized by the police during an investigation from her wooden hut inside her house stacked under hay the illicit liquor was discovered.

The counsel representing the petitioner held that the petitioner is only a lady and has no connection with respect to the recovered wine and the petitioner was not aware of the liquor present in her home nor is aware of the person who kept it under the hay in her wooden hut and further the counsel held that the petitioner has no other criminal antecedent.

The additional public prosecutor held that the petitioner is currently the head of the house as she is a widow and is required to take responsibility regarding the activities that take place on her property. According to the law once the recovery is made from the premises which are owned by the petitioner, here the bar of Section 76(2) of the Bihar prohibition excise Act 2016, would come into play which is “nothing in Section-438 of Code of Criminal Procedure, 1973 (Act 2 of 1974) and Probation of Offenders Act 1958 (20 of 1958) shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.” Therefore the present petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable.

The court 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 Additional public prosecutor. In view of the fact that the recovery has been made from the premises which are owned by the petitioner, prima facie, an offence being made out under the Act, the bar of Section 76(2) of the Act would apply. For reasons aforesaid, the petition stands dismissed as not maintainable.”

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