Arun Kumar v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.70980 of 2023 Arising Out of PS. Case No.-190 Year-2023 Thana- TILAUTHU District- Rohtas ====================================================== Akshya Kumar Yadav @ Suraj Kumar S/O Vinod Yadav R/O VillageRamdihra Kurka, P.S- Tilauthu, Distt.- Rohtas. ... ... Petitioner/s

Versus

THE STATE OF BIHAR ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Rajesh Kumar Singh, Advocate For the Opposite Party/s :

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

2. The petitioner is apprehending his arrest in connection with Tilauthu P.S. Case No.190 of 2023, F.I.R. dated 23.08.2023 registered for the offence punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2018.

3. Allegation is of recovery of 35 liters countrymade liquor under the 'Mahua' tree.

4. Learned counsel for the petitioner submits that petitioner has clean antecedent and has falsely been implicated in the present case. He further submits that the allegation as alleged in the F.I.R. is false and fabricated and the petitioner has not committed any offence as alleged in the F.I.R. He further submits that from perusal of the FIR and seizure list that nothing

2/4 has been recovered from the conscious possession of the petitioner, rather recovery has been made under the 'Mahua' tree and except the secret information no other cogent material has come during investigation 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 counsel for the petitioner.

7. Considering the aforesaid facts that petitioner is having clean antecedent, nothing has recovered from the

3/4 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 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 Exclusive Special Excise Court No.2-cum-Additional District & Sessions Judge, Rohtas at Sasaram in connection with Tilauthu P.S. Case No.

190 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. (ii) If the petitioner tamper with the evidence or the witnesses, in that case, the prosecution will be at liberty to move 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

4/4 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