Patna High CourtCR. MISC./58531/2022bail granted

Upendra Sahni v. The State Of Bihar

2022-11-25Mr. Justice Rajesh Kumar Verma4 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.58531 of 2022 Arising Out of PS. Case No.-175 Year-2021 Thana- VAISHALI District- Vaishali ====================================================== UPENDRA SAHNI Son of Late Kitab Lal Sahni R/o village - Kudhani, P.S.- Kudhani, Dist.- Muzaffarpur.

... ... Petitioner/s

Versus

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

For the Petitioner/s :

Mr. Dilip Kumar Roy, Advocate For the Opposite Party/s :

Mr. Rabindra Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA ORAL ORDER 25-11-2022 Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State.

Learned counsel for the petitioner is permitted to remove the defect(s), as pointed out by the office, if any, within a period of four weeks from today.

The petitioner is apprehending his arrest in a case registered for the offences punishable under Sections 272, 273, 414 of the Indian Penal Code and Section 30(a) of Bihar Prohibition and Excise Act.

Recovery is of 145.625 litres of foreign liquor. Learned counsel for the petitioner submits that the petitioner has clean antecedent and has falsely been implicated in the present case. He further submits that the recovery has been made from the house of co-accused Suresh Singh and the

2/4 motorcycle in question and not from petitioner's possession. He further submits that the name of the petitioner has been transpsired only on the basis that the motorcycle of the petitioner was recovered near the house of Suresh Singh and in fact the petitioner has handed over the vehicle to the elder brother co-accused Sonu Kumar and Sonu Kumar is also accused in the present case. He further submits that co-accused Sonu Kumar has been granted anticipatory bail vide order dated 21.11.2022 in Cr. Misc. No. 50722 of 2022. Therefore, the recovery cannot be attributed to the petitioner. There is noncompliance 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.

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. 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

3/4 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.

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 the learned Court below where the case is pending in connection with Vaishali (Belsar O.P.) P.S. Case No. 175 of 2021, 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

4/4 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 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