Patna High Court - Orders
Ashok Singh vs The State Of Bihar on 7 April, 2023
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3837 of 2022
Arising Out of PS. Case No.-158 Year-2021 Thana- MANIGACHI District- Darbhanga
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1. ASHOK SINGH Son of Late Hem Narain Singh Resident of Najra Babu
Babu Tola, P.S.- Manigachhi, District - Darbhanga.
2. Rajendra Kumar Singh @ Rajendra Kr. Singh Son of Late Jai Narain Singh
Resident of Najra Babu Babu Tola, P.S.- Manigachhi, District - Darbhanga.
... ... Appellant/s
Versus
The State of Bihar Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Bhaskar Shankar
For the Respondent/s : Mr.Syed Ashfaque Ahmad
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CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL ORDER
3 07-04-2023Heard the parties.
The present memo of appeal has been filed on behalf of the appellants against the judgment of conviction and order of sentence dated 28.09.2022 passed by learned Special Excise Judge - II, Darbhanga in G.O. Excise Case No. 35 of 2022 arising out of Manigachhi P.S. Case No. 158 of 2021, whereby and whereunder the appellants have been convicted for the offences punishable under Section 30(a) of Bihar Prohibition and Excise Act, 2016 and have been sentenced to undergo S.I. for five years and fine of Rs. One lakh (Rs. 1,00,000/-) each and in case of default of payment of fine the appellants have to undergo additional S.I. for six months.
Patna High Court CR. APP (SJ) No.3837 of 2022(3) dt.07-04-2023 2/4 As per prosecution case, 492.810 liters of multi brand illegal wine has been recovered from the asbestos house of appellant no. 1 and both appellants were arrested on spot.
Learned counsel for the appellants submits that the appellants were remained in custody near about six months prior prior to the date of conviction and thereafter, since the date of conviction i.e. 28.09.2022 which is more than six months, in this context, total period of custody undergone by the appellants is near about one year. Learned counsel further submits that the seizure list witnesses had not been examined, thereby, the foundation of the case has not been proved against the present appellants. No incriminating material has been recovered from the conscious possession of the appellants. The place from where recovery has been made is an open place and accessible to all. Learned counsel further submits that there is complete violation of mandate of law as prescribed under Section 74(2) and 82 of Bihar Prohibition and Excise Act. Non-production of seized article before court makes the prosecution case doubtful. Chemical examiner has also not been examined. No forensic report of seized article was furnished to the appellants which is violation of their right guaranteed under Article 21 of the Constitution of Indian as well as Section 207 read with 173(5) Patna High Court CR. APP (SJ) No.3837 of 2022(3) dt.07-04-2023 3/4 of Cr.P.C. No independent witness has been examined during the course of trial. Learned counsel further submits that appeal is not likely to be heard in near future.
Learned A.P.P. for the State has vehemently opposes the prayer for bail of the appellants and submits that judgment is just and fair and passed on the basis of evidences adduced by the prosecution witnesses.
Considering the facts and circumstances of the case, period of custody already undergone by the appellants, appeal is not likely to be heard in near future, argument advanced on behalf of the appellants and materials available on record, in the opinion of this Court it will be proper to enlarge the appellants on bail during pendency of the appeal.
Accordingly, let the appellants above-named be enlarged on bail during pendency of the appeal on furnishing bail bond of Rs. 10,000/- (Rupees ten thousands) with two sureties of the like amount each to the satisfaction of the learned Special Excise Judge - II, Darbhanga in G.O. Excise Case No. 35 of 2022 arising out of Manigachhi P.S. Case No. 158 of 2021.
Sentence of the appellants is suspended during the pendency of the appeal and realization of fine shall also remain Patna High Court CR. APP (SJ) No.3837 of 2022(3) dt.07-04-2023 4/4 stayed during the pendency of the appeal.
The appellants are directed co-operate this Court in disposal of the appeal.
List this case under appropriate heading.
(Alok Kumar Pandey, J) amitkr/-
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