Gauri Shankar Ray @ Gaudi Shankar Ray v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.6041 of 2018 Arising Out of PS.Case No. -238 Year- 2017 Thana -DESARI District- VAISHALI(HAJIPUR) ====================================================== Gauri Shankar Ray @ Gaudi Shankar Ray, S/o Binod Rai, Resident of Village- Sablpur Fatehpur, Police Station- Didarganj, District- Patna. .... .... Petitioner

Versus

The State of Bihar.

.... .... Opposite Party ====================================================== Appearance :

For the Petitioner/s : Mr. Jay Ram Prasad, Advocate For the Opposite Party/s : Mr. Brajendra Nath Pandey, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 06-02-2018 All the cases have been placed on the issue of maintainability of the applications in view of bar under Section 76(2) of the Bihar Prohibition and Excise Act, 2016. This Court has called upon the lawyers to satisfy this Court that dehors to the fact mentioned in each case, whether the petition under Section 438 of the Cr.P.C. will be maintainable on the basis of the statement made in the F.I.R.. It will be relevant to quote Section 76(2) of the aforesaid Prohibition and Excise Act, 2016, which reads as follows:- "76(2) Notwithstanding anything mentioned in sub-section (1) above, nothing in Section 360 of Code of Criminal Procedure, 1973 (Act 2 of 1974), Section 438 of Code of Criminal Procedure, 1973 (Act 2 of 1974) and Probation of Offenders Act 1958 (20 of

2/5 1958) shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."

The issue of maintainability of anticipatory bail has been discussed and decided in two anticipatory bail applications with two conflicting views and, later on, this issue came for consideration before the Division Bench of this Court, and to draw final view, it will be appropriate to consider the views discussed in the aforesaid orders.

The first case with the issue of maintainability came for consideration in Cr. Misc. No. 26109 of 2017 wherein the Coordinate Bench of this Court has held that as there is a specific prohibition of entertaining anticipatory bail application as provided under Section 76(2) of the Prohibition Act, the office was directed not to entertain the application in view of the bar stipulated therein. The issue of maintainability again came for consideration before another Bench in the case of Manish Kumar @ Lokesh Kumar Vs. State of Bihar (Cr. Misc. No. 21578 of 2017) wherein learned Single Judge has held that the Bar 76(2) of the Prohibition Act is void but, for authoritative pronouncement, the Single Bench referred the matter to the Division Bench on two points firstly, whether Section 76(2) of the Prohibition Act is void in view of non-compliance of the requirement of Article 254

3/5 of the Constitution of India and, secondly, whether the Registry can be restrained to entertain bail application in view of the order of Coordinate Bench dated 7.7.2017 passed in Cr. Misc. No. 26109 of 2017.

The case of Manish Kumar (supra) was considered by the Single Bench and the Division Bench, as per reference made by the Single Bench, the Division Bench has held that as the vires, validity and the repugnancy of the provision of Section 76(2) of the Act is subjudice before the Apex Court, in such circumstances, it will not be proper to go into the issue and decide the issue of repugnancy in view of non-compliance of the provision of Article 254 of the Constitution of India. So this issue with regard to voidness of Section 76(2) of the Excise Act has been left open but, the Court with regard to second issue of entertaining the application under Section 438 of the Cr.P.C., it has been held that the Registry does not have a jurisdiction to prohibit the registration of the application under Section 438 of the Cr.P.C.

, it is the Bench which will decide as to whether the case is made out under the Prohibition Act or not and if the case is made out under the Prohibition Act, the bar of Section 76(2) of the Act will apply but, in a case, when the facts of case itself depict that no case is made out under the Prohibition Act, the power can be exercised under the 438 of the Cr.P.C.

4/5 fact of each case will decide the maintainability of the application under Section 438 Cr.P.C. and only because the Registry has registered the case will not ipso facto be treated to be maintainable but, it is the Bench, which will decide the maintainability and applicability of Section 76(2) of the Prohibition Act.

In view of the above, this Court now proposes to consider all the cases on its merit and the maintainability of petition will be dependent on the fact of each case. Heard learned counsel for the petitioner and learned counsel for the State.

In this case, the petitioner is seeking anticipatory bail in connection with Desari (Chandpura O.P.) P.S. Case No.238 of 2017 registered for the offence punishable under Sections 30(a) and 32(2) of the Bihar Prohibition & Excise Amendment Act, 2016.

A Scorpio Jeep was intercepted by the police, but the driver of the vehicle was managed to flee away. From the vehicle huge quantity of liquor has been recovered. Learned counsel for the petitioner submits that allegation against the petitioner is that he is the owner of the vehicle which was carrying the liquor except that there is nothing against the petitioner to connect him in trading of the liquor. He

5/5 further submits that the petitioner had no knowledge about the fact that his vehicle was being used for carrying the liquor. From the narration of the facts, this Court is of the view that prima facie the bar of Section 76(2) will not apply in the present case.

Looking to the entire facts and circumstances of the case and also the fact that the petitioner is the owner of the vehicle, let the petitioner, namely, Gauri Shankar Ray @ Gaudi Shankar Ray, be released on anticipatory bail in the event of his arrest or surrender before the learned Court below within a period of six weeks from today, on furnishing bail bonds of Rs.10,000/- (Rupees Ten Thousand Only) with two sureties of the like amount each to the satisfaction of the Additional Session Judge2-cum- Special Judge, Excise Hajipur, in connection with Desari (Chandpura O.P.) P.S. Case No.238 of 2017, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.

(Shivaji Pandey, J) pawan/- U T