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

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 376820 Arising Out of PS. Case No. 354 Year 2020 Thana SHERGHATI District Gaya Aniket Singh aged about 28 years Male the Owner of Hotel Welcome Son of Sanjay Singh Resident of Gola Bazar Sherghati PS Sherghati District The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Shivendra Prasad Advocate Mr. Umesh Lal Verma APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 06 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Shivendra Prasad learned counsel for the petitioner and Mr. Umesh Lal Verma learned Additional Public Prosecutorfor the State 3. The petitioner apprehends arrest in connection with Sherghati PS Case No. 3520 dated 28.07.2020 instituted under Section 30(a) of the Bihar Prohibition and Excise Act 2016of 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. Learned counsel submitted that petitioner does not have any other criminal antecedent 6. On 16.07.2021 the Court had called upon learned APP to seek instructions on the aforesaid submissions of the Today a communication from the Senior Superintendent of Police Gaya has been brought on record in Patna High Court CR. MISC. No.376820 dt.06 08 2021 which it has been stated that as per notification dated 19.03.2018 issued by the Ministry of Health and Family Welfarealcoholic beverage has been specified to be a liquor or brew containing more than 0.5 ethanol and thus the recovery of the fruit beer in which ethyl alcohol content was 0.6% to 0.8% V V comes within the purview of the Act. It has further been stated that the recovery of the drink of Kingfisher Budweiser and Hrineken Company containing ethyl alcohol in the aforesaid percentage clearly would be covered under the Act 7. Learned counsel for the petitioner submitted that the fruit beer seized had been given to Lallan Yadav by M s Kumar Construction which was the distributor of fruit beer and Lallan Yadav had occupied the room of the petitioner’s hotel from which recovery has been effected and thus the petitioner cannot be held liable for such recovery 8. 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 offence 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 Patna High Court CR. MISC. No.376820 dt.06 08 2021 Food Safety and Standard Authority of India) 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 offence 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 9. Thus the Court finds that prima facie an offence having been made out under the Act the present petition under Section 438 of the Code of Criminal Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act 10. In the aforesaid background the petition stands dismissed as not maintainable 11. Interim protection granted to the petitioner under order dated 16.07.2021 stands vacated (Ahsanuddin Amanullah J

Summary: 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.