The Court finds  prima facie an offense and the petitioner is not maintainable due to bar of Section 76(2) under Bihar Prohibition Excise Act, 2016: 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 arrested under Section 30(a) of the Bihar Prohibition and Excise Act, 2016. This is in connection with Sherghati PS Case No. 354 of 2020 dated 28.07.2020. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 6th  of August 2021 in the case of Aniket Singh versus the state of Bihar criminal miscellaneous No. 37686 of 2020, Mr. Shivendra Prasad, Advocate Represented as the advocate for the petitioner and Mr. Umesh Lal Verma represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the allegations against the petitioner were that he illegally stored fruit beer in his hotel situated at Nai Bazar, Sherghati, 534 cans, each containing 300 ML of fruit beer containing 0.6 to 0.8 % alcohol, has been recovered from the police and has been taken into custody as alcohol is illegal in the state of Bihar. The counsel representing the petitioner held that the prosecution case is mala fide because according to the chemical examination the percentage of alcohol was only 0.6 to 0.8 % which is considered under the limit. Under BIS (Bureau of Indian Standards) they have prescribed a limit of 4 % of alcohol. After referring to a judgment by this court in Cr. WJC No. 627 of 2017 dated 05.12.2017, Any alcoholic beverage or potable liquor under section 2(4) of the Bihar prohibition excise act is an offense and prohibits intoxicant liquor. When both the section 2(4) and 2(6) are read together it emphasizes that the recovery would not constitute as an offense and further the counsel held that the petitioner has no other criminal antecedent. The counsel for the petitioner held that the fruit beer had been given to the distributor of fruit beer and the same person occupied the room of the petitioner where the alcohol was recovered and therefore the petitioner has no connection with the said recovery. The Additional Public Prosecutor held that according to the notification issued by the Ministry of Health and Family Welfare (Food Safety and Standard Authority of India), anything more than 0.5 % ethanol will be considered as an alcoholic beverage and the fruit beer contained 0.6-0.8% which will be held has an offense under the Bihar Prohibition Excise act the APP added that any drink from Kingfisher, Budweiser and Heineken Company containing ethyl alcohol with the same percentage would also be considered as an offense. After considering the facts and circumstances of the case the court held that “The Act further stipulates that the owner of the premises would also be liable for such recovery. Thus, the Court finds that prima facie an offense 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.  In the aforesaid background, the petition stands dismissed as not maintainable. Interim protection granted to the petitioner under order dated 16.07.2021, stands vacated.” Click here to read the judgment