IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34922 of 2008 1. Vijay Paswan @ Roshan Kumar Aswani, 2. Bidya Paswan, both sons of Nago Paswan, village and PS Maheshkhunt, District Khagaria – petitioners. Vs. The State of Bihar. For the petitioners : Mr. Ashok Kumar Choudhary and Mr. Sanjay Kumar @ Manu, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. 2 5.4.2010 This application has been filed for quashing the order, dated 8.5.2008 passed by the Subdivisional Judicial Magistrate, Khagaria in Gogri (Maheshkhunt) PS Case No. 47/2005/GR No. 1352/2005 whereby cognizance has been taken as also disposed of the discharge petition filed under section 239 of the Cr.P.C. The allegation in the F.I.R. is that two persons, namely, Ashok Sah and Mukesh Kumar were selling liquor on 24.10.2005 in spite of the order issued by the District Magistrate prohibiting the licensees from opening their shops for sale of alcohol. As per the F.I.R. Ashok Sah and Mukesh Kumar had disclosed the name of Vijay Paswan as being owner of the shop in question. Learned counsel for the petitioner submits that the offences as alleged are not made out; that petitioner no.2 in no way is connected with the aforesaid offence and that 2 the said Mukesh Kumar and Ashok Sah indulged in the offence and as such name of petitioner no. 1 has wrongly been dragged in this case. On perusal of the FIR it would appear that petitioner no.1 is the licensee and his licence was valid at the time of the alleged occurrence. Petitioner no.2 is his full brother and has nothing to do with sale and purchase of the alcohol that were being sold and is not a licensee under the Excise Act. It is, therefore, apparent that the name of petitioner no. 2 has been dragged in the case without there being any evidence that he was selling alcohol or for that matter that he was a licence holder jointly with his brother Vijay Paswan. I, therefore, find that no allegation whatsoever are made out against petitioner no.2 from a bare perusal of the FIR. As far as the case of petitioner no.1 is concerned, learned counsel submits that section 171B of the Penal Code is not applicable as far as it concerns the petitioner. Section 171 is with respect to impersonation at election. On a plain reading of this section, it would appear that it is not applicable in this case. There is not even 3 mention of an election in the FIR that indicates that any of the petitioners or the accused persons were impersonating anyone else during the election. Cognizance has also been taken under section 132 (ka) of the Representation of People Act, 1951. 312 (ka) deals with penalty for violation to observe procedure of voting and reads as follows : “If any elector to whom a ballot paper has been issued, refuses to observe the procedure prescribed for voting the ballot paper issued to him shall be liable for cancellation.” It appears that the court below has not at all applied its mind and not even considered the section involved before taking cognizance. Similar would be the fate of the order taking cognizance with respect to an offence under section 136(2) of the Representation of People Act. Section 136 deals with the offences committed during election process or thereafter. It deals with the offences which would interfere with the power and balance of election. In these circumstances and the facts revealed in the FIR, it cannot be said that selling of wine or selling of alcohol amounts to any offences under the Representation of People Act, 1951. It only amounts to violation of 4 prohibitory order under section 188 of the Penal Code and/or in accordance with Code of Conduct issued by the Election Commission which prohibits sale of liquor during the election process. Finally learned counsel submits that the seizure list would indicate that in fact sale was not taking place from the house of the petitioner, rather, the sale was taking place just adjacent to the house of the petitioner. The bootleggers were taking advantage of the closure of the licensed shop and were making money by sale of alcohal. The fact whether the sale was being made in the lane adjacent to the house of petitioner no.1 is a fact which would basically be evident during the trial and as such this court is not inclined to interfere with the imposition of section 188 of the Penal Code. Lastly it is submitted that petitioner no.1 admittedly is a licensee for sale of liquor and, therefore, the offence under section 47A of the Excise Act do not apply to him. I find and hold that if petitioner no.1 is a licensee, he cannot be prosecuted under section 47A of the Excise Act for the said offence. It can be that the court after hearing the 5 case may find that the other co-accused can be prosecuted under section 47A of the Excise Act. As a result, I quash the order taking cognizance and rejecting the discharge of petitioner no.1 with respect to section 177B of the Penal Code, sections 132 and 136(2)(a) of the Representation of People Act, 1951 and 47A of the Excise Act. I also quash the impugned order as far as it concerns petitioner no.2. In the result, this application is allowed on the terms mentioned aforesaid. haque (Sheema Ali Khan, J.)