The Court finds that once recovery is from the place which is under possession and cultivation of the petitioner, prima facie, an offence is made out under the Act: High court of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 372020 Arising Out of PS. Case No. 224 Year 2020 Thana KALYANPUR District East Champaran Rampukar Kumar @ Rampukar Yadav aged 45 years Male Son of Late Rup Narayan Rai Resident of Village Yamunapur PS Kalyanpur District East The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Umesh Chandra Verma Advocate Mr. Brajendra Nath Pandey APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 03 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Umesh Chandra Verma learned counsel for the petitioner and Mr. Brajendra Nath Pandey learned Additional Public Prosecutor for the State 3. The petitioner apprehends arrest in connection with Kalyanpur PS Case No. 224 of 2020 dated 02.09.2020 instituted under Sections 272 273 of the Indian Penal Code and 30(a) 41(1) of the Bihar Prohibition and Excise Act 2016 hereinafter referred to as the ‘Act’ 4. The allegation against the petitioner is that on secret information that the petitioner was selling foreign liquor Patna High Court CR. MISC. No.372020 dt.03 09 2021 from his paddy field when the police went there 154.650 litres of foreign liquor was recovered from a paddy field which is said to belong to the petitioner as was disclosed by the 5. On 13.07.2021 learned counsel for the petitioner had submitted that he has been falsely implicated as the field from which recovery is shown does not belong to him and only because it is stated that the villagers had informed that the field belongs to the petitioner he has been made accused. Learned counsel drew the attention of the Court to the categorical statement made in paragraph no. 9 of the petition to this effect. Learned counsel submitted that he has been made accused under the same police station in another case i.e. Kalyanpur PS Case No. 2120 in similar circumstances only at the instance of his enemies 6. On such stand the Court had asked learned APP to obtain the up to date legible photocopy of the entire case diary as also a detailed report after due enquiry with regard to whether the field from which recovery is shown in the present case belongs to the petitioner his family from the Superintendent of Police East 7. In terms thereof a report has been submitted by the Superintendent of Police East Champaran dated 05.08.2021 in Patna High Court CR. MISC. No.372020 dt.03 09 2021 which it has been stated that the Circle Officer Kalyanpur East Champaran Motihari has reported that the field from which recovery of liquor has been effected is under the possession and cultivation of the petitioner 8. Having regard to the aforesaid the Court finds that once recovery is from the place which is under possession and cultivation of the petitioner prima facie an offence is made out under the Act and thus 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 9. Accordingly the petition stands dismissed as not 10. Interim protection granted to the petitioner under order dated 13.07.2021 stands withdrawn 11. However in view of submission of learned counsel for the petitioner it is observed that if the petitioner appears before the Court below and prays for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order 12. By order dated 13.08.2021 the Court had called for an explanation from the Superintendent of Police East Champaran with regard to why despite the Court directing learned Patna High Court CR. MISC. No.372020 dt.03 09 2021 APP to obtain copy of the case diary and the report the same was submitted in the Registry of the Court the Superintendent of Police East Champaran Motihari has submitted an explanation under Letter No. 398 dated 25.08.2021 in which it has been stated that the messenger upon reaching Patna had contacted learned APP who had asked him to submit the same in the Registry of the High Court as he was out of station. Learned APP submitted that the same was due to some misconception and communication gap 13. Having regard to the aforesaid the Court finds that there has been no deliberate or wilful laches on the part of the Superintendent of Police East Champaran Motihari in the matter Accordingly the explanation his accepted and the issue stands (Ahsanuddin Amanullah J

Summary: The petitioner was arrested under Section 272 IPC, “Adulteration of food or drink intended for sale whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink”, section 273 of the Indian Penal Code, “Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drinks, knowing or having reason to believe that the same is nox­ious as food or drink” and section 30(a) of the Bihar Prohibition and Excise Act, 2016, “Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor”, section 41(1) of the act, “Penalty for import, export, manufacture, transport, sale or possession by one person on account of another” This petition in connection with Kalyanpur PS Case No. 224 of 2020 dated 02.09.2020. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 3rd  of September 2021 in the case of Rampukar Kumar @ Rampukar Yadav versus the state of Bihar, criminal miscellaneous No. 37209 of 2020. Mr Umesh Chandra represented as the advocate for the petitioner, and Mr Brajendra Nath 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 petitioner was accused of selling foreign liquor from his paddy field and when the police arrived about 154.650 litres of foreign liquor was recovered from the paddy field, the villagers disclosed the fact that the paddy field belonged to the petitioner. The counsel representing the petitioner held that the petitioner has been falsely implicated as the paddy field from where the recovery of the liquor was made does not belong to the petitioner and also because the villagers have disclosed such information, the petitioner was accused. Further, the counsel held that he has been accused in the same police station for another case as well which is Kalyanpur PS Case No. 218 of 2020, the reason is because of his enemies such false cases have been lodged. The additional public prosecutor with the order of the court, made arrangements for investigation whether the paddy field belonged to the petitioner or not and a report has been submitted by the superintendent of police in the East Champaran dated 05.08.2021 that the field from which recovery of liquor has been effected is under the possession and cultivation of the petitioner. After considering the facts and circumstances of the case the court held that “the Court finds that once recovery is from the place which is under possession and cultivation of the petitioner, prima facie, an offence is made out under the Act and, thus, 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.