Rohit Sah @ Anuj Sah v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.70964 of 2023 Arising Out of PS. Case No.-298 Year-2023 Thana- PHULWARIYA District- Gopalganj ====================================================== ROHIT SAH @ ANUJ SAH Son of Ram Haresh Prasad R/o vill - Fatehpur, P.S. - Siwan Town, Distt. -Siwan ... ... Petitioner/s

Versus

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

For the Petitioner/s :

Mr.Javed Aslam, Advocate For the Opposite Party/s :

Mr.Sanjay Kumar Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA ORAL ORDER 07-11-2023 Heard Mr. Javed Aslam, learned counsel for the petitioner as well as Mr. Sanjay Kumar Sharma, learned Additional Public Prosecutor for the State.

2. The petitioner is apprehending his arrest in connection with Phulwaria P.S. Case No.298 of 2023, F.I.R. dated 17.08.2023 registered for the offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2018.

3. Allegation is of recovery of 648 liters foreign liquor has been recovered from the Scorpio.

4. Learned counsel for the petitioner submits that petitioner has clean antecedent and has falsely been implicated in the present case on the basis of the disclosure made by the coaccused person, namely, Rohit Kumar Tiwari. He further submits that from perusal of the FIR and seizure list that nothing has been recovered from the conscious possession of the

2/4 petitioner, rather recovery has been made from the vehicle in question and it appears from the seizure list itself that petitioner is neither the owner nor the driver of the vehicle in question. He further submits that the vehile in question is registered in the name of co-accused person, namely, Rohit Kumar Tiwary and except the disclosure made by the co-accused person no other material has come to suggest the involvement of the petitioner in the present occurrence. 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.

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

3/4 counsel for the petitioner.

7. Considering the aforesaid facts that petitioner is having clean antecedent, nothing has recovered from the conscious possession of the petitioner, name of the petitioner has been transpired in this case on the basis of the statement made by the co-accused person, 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 anticipatory bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-II-cum-Special Judge, Excise Court,1, Gopalganj in connection with Phulwaria P.S. Case No.

298 of 2023, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure and with other following conditions:- (i) 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 bonds shall be cancelled by the Court below.

4/4 for cancellation of anticipatory bail.

(iii) 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 antecedents, the court below shall take step for cancellation of anticipatory 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) Prakash Narayan U T