The Court relied on Prima Facie of the offense and dismissed the petition and hence held it as not maintainable under Court of Law: High Court Of Patna

The Petitioner was alleged of mixing the drinks with the alcohol beyond the prescribed limit. The Court denied the petition and held it as not maintainable under the court of law. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Aniket Singh v. The State of Bihar[Criminal Miscellaneous No. 37686 of 2020]. 

The facts of the case are that the petitioner was apprehended arrest in connection with Case, instituted under Section 30(a) of the Bihar Prohibition and Excise Act, 2016. It was alleged that the petitioner from Hotel Welcome owned by him only had 534 cans each containing 300 ML of fruit beer with 0.6-0.8% of alcohol content recovered from there.

The Learned Counsel for the Petitioner had submitted that the case of mala fide and for this reasoning the chemical examination reports revealed that the percentage of alcohol by volume varied from 0.6-0.8% which was well under the limit by any drink as classified in the provisions.

The learned Counsel added,”… the word “alcoholic beverage or potable liquor”, under Section 2(4) of the Act, has been considered and it has been held that the Act prohibits “intoxicant or liquor containing alcohol of any strength and purity as per the definition of ‘alcoholic’ under Section 2(3) of the Act” and simultaneously, it does not prohibit sale, etc. of non-alcoholic substances in conformity with the standard set by the BIS, in view of the definition and clarification contained under Sections 2(4) and 2(6) of the Act. Thus, it was submitted that both sections, if read together, would show that in the present case whatever has been recovered would not constitute an offence under the Act.”

 The Additional Public Prosecutor contended that the drinks recovered from the petitioners come under the mentioned percentage of the Act. Also, the drinks were delivered by someone else to the hotel from which the recovery of the drinks has been affected.

The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that for the purposes of consideration of the present petition, a prima facie offense is required to be seen whether made out under the Act. In the present case, when as per notification dated 19.03.2018, issued by the Ministry of Home and Family Welfare (Food Safety and Standard Authority of India), the alcoholic beverage has been specified as containing more than 0.5 % ethanol and in the present case, the percentage of ethanol being 0.6 to 0.8, prima facie, an offense is made out under the Act. The Act further stipulates that the owner of the premises would also be liable for such recovery. The Court would pause here to indicate that though such presumption is rebuttable, but it has to be at the stage of trial where it has to be proved that the accused had no concern with the recovered article which can be done only upon adducing evidence and the stage would be clearly at the time of trial.”

The court relies on the prima facie of an offence and the present petition eas under Section 438 of Code Of Criminal Procedure, 1973 would not be maintainable due to bar of Section 76(2) of the Act. The petition was hence dismissed as not maintainable.

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Judgment Reviewed By Nimisha Dublish

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