1. The matter has been heard via video conferencing.
2. The matter has been heard out of turn on the basis of motion slip filed by learned counsel for the petitioner yesterday, which was allowed.
3. Heard Mr. Ramakant Sharma, learned senior counsel along with Mr. Rakesh Kumar Sharma, learned counsel for the petitioner and Mr. Vinod
Shankar Modi, learned Additional Public Prosecutor (hereinafter referred to as the ‘Act’).
4. The petitioner apprehends arrest in connection with Aurangabad (T) PS Case No. 337 of 2020 dated 21.09.2020, instituted under Section 30(a) of
the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as the ‘Act’).
5. The allegation against the petitioner is that the bolero jeep which was seized by the police on 21.09.2020 with 1410 litres of countrymade liquor, was
owned by him.
6. Learned counsel for the petitioner submitted that he is a resident of district of Palamu in the State of Jharkhand whereas seizure was made in the
town of Aurangabad in the State of Bihar and the same was a commercial vehicle. It was submitted that the actual articles transported on his
commercial vehicle are not known to the petitioner as it is the driver who is in-charge of the same and the petitioner was only getting the earning out
of the use, but had no knowledge, much less, had consented to any illegal business or material being transported, including the countrymade liquor. It
was submitted that seizure has not been in accordance with law as there are no independent witnesses to prove that the allegation of recovery from
the said vehicle is correct since both the witnesses are constables who were members of the raiding party. Learned counsel submitted that the
petitioner has no criminal antecedent.
7. Learned APP submitted that the present application is not maintainable in view of bar of Section 76(2) of the Act as an offence is made out. It was
submitted that Section 32 of the Act deals with presumption with regard to commission of offence and the presumption is that the owner of the vehicle
is also involved, unless proved otherwise. It was, thus, submitted that for proving it otherwise, the stage is trial, but for the present, as prima facie an
offence is made out under the Act, the bar of Section 76(2) of the Act shall apply to the arrest of any person on an accusation of having committed an
offence under the Act.
8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the
contention of learned APP. The language of Section 76(2) of the Act is very clear that an application under Section 438 of the Code of Criminal
Procedure, 1973 shall not apply to any case involving the arrest of any person on an accusation of having committed an offence under the Act. Thus,
there being an accusation, in terms of Section 32 of the Act, when it is admitted that the vehicle from which seizure has been made, belonged to the
petitioner, clearly the bar of maintainability would apply.
9. For reasons aforesaid, the application stands disposed off as not maintainable.
10. However, in view of submissions of learned counsel for the petitioner, it is observed that if the petitioner appears before the Court below and prays
for bail, the same shall be considered, on its own merits, in accordance with law, without being prejudiced by the present order.