Ashok Choudhary v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.74546 of 2023 Arising Out of PS. Case No.-422 Year-2023 Thana- BARUN District- Aurangabad ====================================================== 1.

Ashok Choudhary Son Of Nepali Choudhary Village- Keshopur Ps- Barun Dist- Aurangabad 2.

Chandan Choudhary Son Of Nepali Choudhary Village- Keshopur Ps- Barun Dist- Aurangabad ... ... Petitioner/s

Versus

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

For the Petitioner/s :

Mr.Santosh Kumar Pandey For the Opposite Party/s :

Mr.Shailendra Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH ORAL ORDER 02-12-2023 Learned counsel for the petitioners is permitted to remove the defect(s), as pointed out by the office, if any, within a period of three weeks from today.

2. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State.

3. The petitioners are apprehending their arrest in connection with Barun P.S. Case No. 422 of 2023 dated 05.09.2023 registered for the offences punishable u/s 30(a) and 30(c) of the Bihar Prohibition and Excise Act.

4. As per the prosecution case, 10,000 litres of soaked mahuwa with jaggery, 90 kg. of jaggery, 210 litres of desi mahuwa liquor, utensils for manufacturing illegal liquor were

Patna High Court CR. MISC. No.74546 of 2023(2) dt.02-12-2023 2/3 recovered near the Kesho market near the Sone river Diara.

5. Learned counsel for the petitioners has submitted that the petitioners have falsely been implicated in this case. The petitioner no. 1 is accused in one more criminal case and petitioner no. 2 is accused in two other criminal case as stated in para 3 of the bail petition. No incriminating article has been recovered from the conscious possession of the petitioners, hence no case is made out. The recovery is made from an open place which is accessible to anyone. Learned Counsel has relied on the judgment of Full Bench of Hon'ble Patna High Court in the case of Ram Vinay Yadav vs. State of Bihar reported in 2019 (2) PLJR 1089. The Full Bench in the case of Ram Vinay Yadav (supra) has held that an application for anticipatory bail in a case arising out of Bihar Excise and Prohibition Act can be maintained, despite the bar under Section 76 (2) of the Act, if on the basis of allegation made in the FIR, no offence under the said provision is made out.

6. Learned A.P.P. for the State has vehemently opposed the prayer for anticipatory bail of the petitioners by submitting that the bar of Section 76(2) of the Act applies in this case.

7. Considering the aforesaid facts and circumstances

Patna High Court CR. MISC. No.74546 of 2023(2) dt.02-12-2023 3/3 of the case, let the above named petitioners, in the event of their arrest/surrender within a period of six weeks from today, be enlarged on anticipatory bail on furnishing bail-bond of Rs. 20,000/- (Rupees Twenty thousand) each with two sureties of the like amount each to the satisfaction of learned Court concerned, Aurangabad in connection with Barun P.S. Case No. 422 of 2023 subject to conditions as laid down under Section 438(2) of the Code of Criminal Procedure.

8. This application stands allowed.

(Chandra Prakash Singh, J) atul/- U T