MEGHNATH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) In Cr. Revision No. 477 of 2010 as well as Cr. Revision No. 479 of 2010 Meghnath Prasad happens to be the petitioner while in Cr. Revision No. 478 of 2010 Sonu Kumar, his brother happens to be the petitioner. All these three petitions have arisen against the order passed by the learned trial court refusing to discharge them in accordance with Section 239 of the Cr.P.C. Because of the fact that alleged recovery of wine has been made in same sequence on the alleged date of occurrence at three different places, accordingly, with the consent of the respective parties, the matter has been heard analogously and the order impugned will command prospect of all these three revision petitions. It has been submitted on behalf of the petitioners that the Excise Officials with an ulterior motive conducted raid at the licensee shop of petitioner Meghnath Prasad and having frustrated on account of finding no illegality during course of running of licensee shop, they hatched up a plan whereunder certain numbers of wine bottles of foreign liquor has been shown recovered from the shop of Meghnath Prasad on 31.12.2008 and for that Excise Case No. 163 of 2008 was registered. Then thereafter they again shown recovery of certain bottles of foreign liquor from a room lying behind a cement Godown on the same day for that Sonu Kumar, another petitioner (brother of Meghnath Prasad) has been prosecuted under Excise Case No. 164 of 2008. On the same day that means to say on 3.12.2008 another recovery has been shown from a lonely place near railway line and for that again Meghnath Prasad has been prosecuted under Excise Case No. 165 of 2008. Simple submission is that without any basis and foundation these three cases have been drawn against the petitioners who on previous count failed to grease palm of excise officials. It has further been submitted that petitioners proceeded departmentally filing an appeal before the Commissioner, Excise and on whose direction, the licensee shop of petitioner was properly verified by a team in consonance with the recovery so shown and finding no irregularity or illegality, the seized foreign liquor relating to Excise Case No. 163 of 2008 had already been released in favour of petitioner. Hence, prima facie no case subsists against the petitioner. So far, Excise Case No. 164 of 2008 and Excise Case No. 165 of 2008 are concerned, there happens to be complete lacking of material collected by the Excise Officials during course of investigation having connectivity of petitioners with the crime so alleged. As such, the learned trial court was on wrong pedal in rejecting prayer of the petitioners.

(2.) At the other hand, the learned Additional P.P. opposed the prayer and submitted that for the purpose of framing of charge strong suspicion is sufficient to attract continuance of proceeding. Also submitted that occurrence of all the three cases happens to be in its continuity and was seized in or around the licensee shop of Meghnath Prasad and on account thereof, justify continuance of all the three proceeding.

(3.) From all the three records, it is apparent that a report in terms of Section 78(4) of the Excise Act has been filed without supported with any connecting material which the investigating authority ought to have collected in terms of sub-clause (A) of Section 78 of the Excise Act. As it appears the Excise officials are entrusted to proceed with the investigation in terms of presence of sub-section 2 of Section 77 of the Excise Act. Therefore, the learned lower court, before passing the impugned order should have directed the prosecution to place those documents which were essential at least so far Excise Case No. 164 of 2008 as well as Excise Case No. 165 of 2008 are concerned because of the fact that in Case No. 164 of 2008 the seizure list clearly indicates that recovery has been made from a room while with regard to Excise Case No. 165 of 2008 the recovery has been shown near a railway line. Furthermore, from the lower court record, it is also apparent that a petition was filed on behalf of Excise Official on 6.12.2008 in Case No. 165 of 2008 disclosing therein that up-till now they have not been able to trace out the owner. The order impugned also suggest that neither any material was available before the learned trial court nor the trial court was in a position to look into the same. Only speculation of the court will not justify rejection of the prayer of the petitioners. Therefore, the order passed by the learned trial court so far Excise Case No. 164 of 2008 as well as Excise Case No. 165 of 2008 are concerned, they did not justify their continuity and on account thereof are set aside. Cr. Revision No. 478 of 2010 as well as Cr. Revision No. 479 of 2010 are allowed. The matter is remitted back to the learned lower court to proceed afresh after directing the prosecution to place the materials so collected in terms of Section 78 of the Excise Act.