SHAMBHU CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners herein who have been impleaded as accused in Ahiyapur P.S. Case No. 306 of 2006 (G.R. No. 2391 of 2006) have questioned the propriety of order dated 1.3.2007 passed by Sri Arbind Kumar Singh, Judicial Magistrate, 1st Class, Muzaffarpur, whereby he has dismissed the petition filed by the petitioner for their discharge in the said case.

(2.) The prosecution story is based on the self statement of S.I. Md. Ayub, the Officer Incharge of Ahiyapur P.S. who stated inter alia that at about 8.15 A.M. on 10.9.2006 he received confidential information that wine shop owner Shambhu Choudhary along with Suresh Choudhary and Prem Choudhary used to sell wine illegally in addition to selling foreign liquor from their shop whereupon he requested Pradeep Kumar, Sub Inspector, Excise Department to co-operate and conducted a raid in the said shop at 11.10 A.M. with the help of other police officials and constable Navin Kumar of the Excise Department and found that Suresh Choudhary and Umesh Thakur were selling the wine from the shop. The shop as also the house were searched and in course thereof during the search of the upper floor of the house 80 cartons of medicinal wine with the label of Ayurvedic medicines and Jogi Baba pasted on top of each of the cartons were recovered, each carton containing bottles of 180 ML. with the stickers of Ayurvedic Medicine and Jogi Baba were seized under a seizure list and on the basis thereof the aforesaid Ahiyapur P.S. Case No. 306 of 2006 u/s. 271 and 272 of the Indian Penal Code and 47-A of the Excise Act was registered against 6 persons named in the F.I.R.

(3.) It has been submitted on behalf of the petitioners that the medicinal wine had neither been seized from the possession of the petitioners nor from the wine shop and there was no evidence of their being any complicity of any of these petitioners in dealing with the aforesaid illicit dealer and was, in fact, recovered from the room in the upper floor. In this connection it was submitted that from the licensed wine shop are running in the alleged house for which licenses have been granted to Birendra Kumar and Om Prakash Choudhary respectively for the year 2006-07 and the location of the shop prescribing the name of the landlord with its boundary was approved by the Excise Superintendent, Muzaffarpur. It is further submitted that it would be apparent from the perusal of the boundary that Binod Choudhary was the owner of the alleged house and the alleged rooms in which the shop are running were given to Birendra Kumar and Om Prakash Choudhary and not to the petitioners.