Sunil Kumar And Anr vs State Of Bihar

The matter has been heard via video conferencing.

Heard Mr. Ashok Kumar, learned counsel for the petitioners and Mr. Amitesh Kumar, learned Additional Public Prosecutor (hereinafter referred to

as the ‘APP’) for the State.

The petitioners apprehend arrest in connection with Gorea Kothi P.S. Case No. 126 of 2020 dated 22.08.2020, instituted under Sections 30(a)/36 of

the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the ‘Act’).

The allegation against the petitioners is that when the police while patrolling at 1:00 PM reached the place of occurrence, two persons were seen

carrying sacks and on seeing the police they threw the sacks behind a shop and fled away. It is alleged that on search a total of 8.280 litres of liquor

was recovered and two independent witnesses signed on the seizure list and the same independent witnesses also recognized the petitioners as the

persons who were dealing in liquor and had kept the liquor.

Learned counsel for the petitioners submitted that it is unbelievable that two persons would manage to run away at 1:00 P.M when there were five

policemen. It was submitted that petitioners have no criminal antecedent and due to village politics and enmity they have been named by the witnesses

who had signed the seizure list.

Learned APP submitted that it is not a case where the police have stated that on information that petitioners are involved, they raided the area; and

rather in the present case the independent witnesses who have signed the seizure list have disclosed the name of the petitioners and thus it cannot be

disbelieved, at least at present. Learned APP submitted that in such view of the matter, the present application itself is not maintainable in view of bar

of Section 76(2) of the Act which prohibits an application under Section 438(2) of the Code of Criminal Procedure, 1973, if an offence is made out

under the Act.

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 petitioners have been specifically identified by the independent witnesses that they were dealing in liquor and

had kept the recovered liquor, the present application would not be maintainable.

In view thereof, the application stands disposed off as not maintainable.

However, in view of the submissions of learned counsel for the petitioners, it is observed that if the petitioners appear before the Court below and

seek bail, the same shall be considered on its own merits, in accordance with law, without being prejudiced by the present order.