Patna High CourtCR. MISC./58919/2023bail granted

Md.Mushtak@Md.Moshtak v. The State Of Bihar

2023-10-07Mr. Justice Rajesh Kumar Verma4 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.58919 of 2023 Arising Out of PS. Case No.-143 Year-2023 Thana- BAJPATTI District- Sitamarhi ====================================================== MD.MUSHTAK@MD.MOSHTAK SON OF LATE MD. SABBIR RESIDENT OF VILLAGE- MADHUBAN BAZAR, PS- BAJPATTI, DISTTSITAMARHI ... ... Petitioner/s

Versus

The State of Bihar ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Ranjeet Kumar Mishra, Advocate For the Opposite Party/s :

Mr. Dr. Kumar Uday Pratap, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA ORAL ORDER 07-10-2023 Heard Mr. Ranjeet Kumar Mishra, learned counsel for the petitioner and Dr. Kumar Uday Pratap, learned Additional Public Prosecutor for the State.

2. The petitioner is apprehending his arrest in connection with Bajpatti P.S. Case No. 143 of 2023 F.I.R. dated 12.05.2023 registered for the offences punishable under Sections Section 30(a) of Bihar Prohibition and Excise Act.

3. Recovery is of 55.200 litres of Nepali Sufi liquor.

4. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in the present case on the basis of secret information and his criminal antecedent of similar nature. He further submits that nothing has been recovered from the conscious possession or the house

2/4 of the petitioner rather recovery has been made from the motorcycle in question and the petitioner is not the owner of the motorcycle in question and he has no concern at all with the alleged recovery of illicit liquor. Therefore, the recovery cannot be attributed to the petitioner. There is non-compliance with mandatory procedure prescribed for recovery under Section 100 of Cr. P.C. No case, whatsoever, would be made out against the petitioner under the Bihar Prohibition and Excise Act.

5. The learned Additional Public Prosecutor has vehemently opposed the prayer for anticipatory bail of the petitioner referring the provision contained in Section 76(2) of the Bihar Prohibition and Excise Act and submitted that the prearrest bail would not be maintainable. He further submits that the petitioner carries one criminal antecedent other than the present one but fairly submits that he is on bail.

6. This court is aware of the decision of the Full Bench in the case of Ram Vinay Yadav vs. State of Bihar reported in 2019(2) P.LJ.R. 1089. Having regard to the law laid down in the aforesaid judgment and the submission advanced on behalf of the parties, this Court, for the limited purpose of grant of anticipatory bail, is inclined to accept the submission of counsel for the petitioner.

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7. Considering the aforesaid facts, nothing has been recovered from conscious possession of the petitioner, let the petitioner, above named, in the event of his arrest or surrender before the court below within a period of thirty days from the date of receipt of the order. be released on bail on furnishing bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Exclusive Excise Judge-II, Sitamarhi/concerned court in connection with Bajpatti PS. Case No. 143 of 2023, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure and with other following conditions:-

1. Petitioner shall co-operate in the trial and shall be properly represented on each and every date fixed by the court and shall remain physically present as directed by the court and on his absence on two consecutive dates without sufficient reason, his bail bond shall be cancelled by the Court below.

2. If the petitioner tampers with the evidence or the witnesses, in that case, the prosecution will be at liberty to move for cancellation of bail.

3. And further condition that the court below shall verify the criminal antecedent of the petitioner and in case at any stage it is found that the petitioner has concealed his

4/4 criminal antecedent, the court below shall take step for cancellation of bail bond of the petitioner. However, the acceptance of bail bonds in terms of the above-mentioned order shall not be delayed for purpose of or in the name of verification.

(Rajesh Kumar Verma, J) Ibrar//- U T