Patna High Court – Orders
Surendra Kumar Mandal vs The State Of Bihar on 3 January, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2533 of 2024
Arising Out of PS. Case No.-194 Year-2021 Thana- DUMRA District- Sitamarhi
======================================================
Surendra Kumar Mandal S/O Late Shambhoo Mandal @ Shambhu Mandal
R/O Village- Vishanpur, Ward No. 7, P.S- Dumra, Distt.- Sitamarhi, Pin Code-
843302 (Bihar).
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
with
CRIMINAL APPEAL (SJ) No. 2147 of 2024
Arising Out of PS. Case No.-194 Year-2021 Thana- DUMRA District- Sitamarhi
======================================================
1. Sanjay Mahto Son of Raghvendra Mahto @ Rajmangal Mahto R/O Village-
Lagma, P.S.- Dumra, Dist- Sitamarhi
2. Madan Kumar Son of Jairam Rai R/O Village- Adhgaon, P.S.- Nanpur, Dist-
Sitamarhi
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
with
CRIMINAL APPEAL (SJ) No. 2321 of 2024
Arising Out of PS. Case No.-194 Year-2021 Thana- DUMRA District- Sitamarhi
======================================================
1. Chandan Kumar Son of Naresh Raut R/o village - Adhgaon, P.S.- Nanpur,
District - Sitamarhi
2. Om Kumar Son of Vidyanand Giri R/o village - Adhgaon, P.S.- Nanpur,
District - Sitamarhi
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
with
CRIMINAL APPEAL (SJ) No. 2330 of 2024
Arising Out of PS. Case No.-194 Year-2021 Thana- DUMRA District- Sitamarhi
======================================================
1. Deepak Kumar Son of Pramod Sahni R/O Vill.- Prem Nagar, P.S.
Runnisaidpur, Dist.- Sitamarhi
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
2/17
2. Ajay Kumar Son of Nannu Das R/O VIll.- Lagma, P.S.- Dumra, Dist.-
Sitamarhi
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
Appearance :
(In CRIMINAL APPEAL (SJ) No. 2533 of 2024)
For the Appellant/s : Mr. Uday Kumar, Adv
For the Respondent/s : Mr. Ramchandra Singh, APP
(In CRIMINAL APPEAL (SJ) No. 2147 of 2024)
For the Appellant/s : Mr. Ashok Kumar Jha, Adv
: Mr. Saurav Anand, Adv
For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP
(In CRIMINAL APPEAL (SJ) No. 2321 of 2024)
For the Appellant/s : Mr. Ashok Kumar Jha, Adv
For the Respondent/s : Mr. Ramchandra Singh, APP
(In CRIMINAL APPEAL (SJ) No. 2330 of 2024)
For the Appellant/s : Mr. Santosh Kumar, Adv
For the Respondent/s : Mr. Ramchandra Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
4 03-01-2025
CRIMINAL APPEAL (SJ) No.2533 of 2024
Heard learned counsel appearing on behalf of the
parties.
2. The present matter was taken on board for
considering prayer of bail and suspension of sentence under
Section 389 (1) of the Code of Criminal Procedure (in short
Cr.P.C.)/Section 430(1) of BNSS as raised through memo of
appeal, itself as preferred under Section 374(2) of the
Cr.P.C./ Section 415 (2) of BNSS.
3. The appellant has been convicted by the
judgment of conviction dated 22.03.2024 and order of
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
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sentence dated 30.03.2024 passed by learned Additional
District and Sessions Judge-cum-Exclusive Special Judge,
Excise 1, Sitamarhi in Trial No. 6513 of 2022 arising out of
Dumra P.S. Case No. 194 of 2021, whereby he has been
convicted under Section 30(a) of the Bihar Prohibition and
Excise Act and he has been sentenced to undergo simple
imprisonment for seven years and fine of Rs. 1,00,000/- and
in default of payment of fine, further undergo simple
imprisonment for three months for the aforesaid offence.
4. Learned counsel for the appellant submitted that
admittedly as per testimony of all prosecution witnesses it
transpired during the trial that appellant was driver of the
alleged tempo, which was a public carrier. It is submitted that
from the testimony of P.W. 7/informant & P.W. 8/I.O. it
nowhere appears that appellant was under knowledge of
carrying consignment of illicit liquor and therefore with
available evidence it cannot be said that recovery was made
from the conscious possession of appellant, thus by making
judgment of conviction as recorded by learned trial court
appears questionable.
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
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5. While concluding the argument learned counsel
submitted that with aforesaid evidence balance of appeal
appears in favour of appellant, where appellant remains in
custody for about sixteen months against the fixed term
sentence of seven years as ordered through impugned
judgment. It is further submitted that appeal is of year 2024,
itself and is not likely to be listed for final hearing in the near
future and on this score alone appellant deserves bail. In
support of his submissions learned counsel relied upon the
legal report of Hon’ble Supreme Court as held in the matter of
Atul @ Ashutosh Vs. State of Madhya Pradesh,
reported in [(2024) 3 SCC 663].
6. Learned APP appearing on behalf of respondent-
State, while opposing the prayer of bail and suspension of
sentence could not dispute the factual and legal submission as
advanced by learned counsel for the appellant.
7. In view of above discussed factual and legal
submissions and by taking note of fact as appellant was driver
and prima-facie recovery of illicit liquor appears doubtful from
his conscious physical possession, where accused/appellant is
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
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in custody for about sixteen months against maximum fixed
term sentence of seven years and as this appeal is not likely
to be taken up for final hearing in the near future, as same is
of year 2024, accordingly by taking note of legal ratio as
available through, Atul @ Ashutosh Case (supra)
accused/appellant, above named, is directed to be released on
bail in Trial No. 6513 of 2022 arising out of Dumra P.S. Case
No. 194 of 2021 on furnishing bail bond of Rs.10,000/-
(Rupees Ten Thousand) with two sureties of the like amount
each to the satisfaction of learned Additional District and
Sessions Judge-cum-Exclusive Special Judge, Excise 1,
Sitamarhi/concerned Court, during pendency of appeal.
8. Sentence of imprisonment imposed on the
appellant is suspended till disposal of the appeal and recovery
of fine be also kept in abeyance.
9. Appellant shall co-operate in disposal of this
appeal.
10. Observations, as regard to merit, if any, shall be
of no bearing while final hearing of this appeal.
11. Re-notify this case as per its own seriatim for
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
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final hearing.
CRIMINAL APPEAL (SJ) No.2147 of 2024
Heard learned counsel appearing on behalf of the
parties.
2. The present matter was taken on board for
considering prayer of bail and suspension of sentence under
Section 389 (1) of the Code of Criminal Procedure (in short
Cr.P.C.)/Section 430(1) of BNSS as raised through memo of
appeal, itself as preferred under Section 374(2) of the
Cr.P.C./ Section 415 (2) of BNSS.
3. The appellants have been convicted by the
judgment of conviction dated 22.03.2024 and order of
sentence dated 30.03.2024 passed by learned Additional
District and Sessions Judge-cum-Exclusive Special Judge,
Excise 1, Sitamarhi in Trial No. 6513 of 2022 arising out of
Dumra P.S. Case No. 194 of 2021, whereby they have been
convicted under Section 30(a) of the Bihar Prohibition and
Excise Act and they have been sentenced to undergo simple
imprisonment for seven years and fine of Rs. 1,00,000/- and
in default of payment of fine, further undergo simple
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
7/17
imprisonment for three months for the aforesaid offence.
4. Learned counsel for the appellants submitted that
both appellants were not arrested from spot, rather Sanjay
Mahto was implicated in the present case being owner of the
alleged 3-wheeler tempo which was with co-accused Surendra
Kumar Mandal (appellant in Cr. Appeal (SJ) No. 2533 of
2024). It is pointed out that appellant Madan Kumar was
implicated only for the reason as his driving licence was found
inside the alleged truck from where 1800 litres of IMFL was
recovered. It is submitted that from the testimony of P.W.
7/informant & P.W. 8/I.O., it nowhere appears that
appellants were connected in any manner with the
consignment of illicit liquor and therefore with available
evidence recovery of illicit liquor cannot be said to be made
from the conscious possession of appellants, making
judgment of conviction questionable.
5. While concluding the argument learned counsel
submitted that with aforesaid evidence balance of appeal
appears in favour of appellant, where appellant remains in
custody for about sixteen months against the fixed term
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
8/17
sentence of seven years as ordered through impugned
judgment. It is further submitted that appeal is of year 2024,
itself and is not likely to be listed for final hearing in the near
future and on this score alone appellant deserves bail. In
support of his submissions learned counsel relied upon the
legal report of Hon’ble Supreme Court as held in the matter of
Atul @ Ashutosh Vs. State of Madhya Pradesh,
reported in [(2024) 3 SCC 663].
6. Learned APP appearing on behalf of respondent-
State, while opposing the prayer of bail and suspension of
sentence could not dispute the factual and legal submission as
advanced by learned counsel for the appellant.
7. In view of above discussed factual and legal
submissions and by taking note of fact as prosecution
witnesses categorically stated during the trial that the
recovery of illicit liquor not made from the conscious physical
possession of appellants, where accused/appellants are in
custody for about sixteen months each against maximum
fixed term sentence of seven years and as this appeal is not
likely to be taken up for final hearing in the near future, as
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
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same is of year 2024, accordingly by taking note of legal ratio
as available through, Atul @ Ashutosh Case (supra)
accused/appellants, above named, are directed to be released
on bail in Trial No. 6513 of 2022 arising out of Dumra P.S.
Case No. 194 of 2021 on furnishing bail bond of Rs.10,000/-
(Rupees Ten Thousand) with two sureties of the like amount
each to the satisfaction of learned Additional District and
Sessions Judge-cum-Exclusive Special Judge, Excise 1,
Sitamarhi/concerned Court, during pendency of appeal.
8. Sentence of imprisonment imposed on the
appellant is suspended till disposal of the appeal and recovery
of fine be also kept in abeyance.
9. Appellant shall co-operate in disposal of this
appeal.
10. Observations, as regard to merit, if any, shall be
of no bearing while final hearing of this appeal.
11. Re-notify this case as per its own seriatim for
final hearing.
CRIMINAL APPEAL (SJ) No.2321 of 2024
Heard learned counsel appearing on behalf of the
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
10/17
parties.
2. The present matter was taken on board for
considering prayer of bail and suspension of sentence under
Section 389 (1) of the Code of Criminal Procedure (in short
Cr.P.C.)/Section 430(1) of BNSS as raised through memo of
appeal, itself as preferred under Section 374(2) of the
Cr.P.C./ Section 415 (2) of BNSS.
3. The appellants have been convicted by the
judgment of conviction dated 22.03.2024 and order of
sentence dated 30.03.2024 passed by learned Additional
District and Sessions Judge-cum-Exclusive Special Judge,
Excise 1, Sitamarhi in Trial No. 6513 of 2022 arising out of
Dumra P.S. Case No. 194 of 2021, whereby they have been
convicted under Section 30(a) of the Bihar Prohibition and
Excise Act and they have been sentenced to undergo simple
imprisonment for seven years and fine of Rs. 1,00,000/- and
in default of payment of fine, further undergo simple
imprisonment for three months for the aforesaid offence.
4. Learned counsel for the appellants submitted that
both appellants are laborers and were arrested from spot as
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
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they were found unloading consignment of illicit liquor. It is
further submitted that both appellants were not aware of the
fact that they were engaged for unloading of illicit liquor,
which was prohibited in the state. It is submitted that from
the testimony of P.W. 7/informant & P.W. 8/I.O. it appears
that appellants were unaware about the contents of carton
and therefore with available evidence judgment of conviction
as recorded by learned trial court appears doubtful.
5. While concluding the argument learned counsel
further submitted that with aforesaid evidence balance of
appeal appears in favour of appellant, where appellant
remains in custody for about sixteen months against the fixed
term sentence of seven years as ordered through impugned
judgment. It is further submitted that appeal is of year 2024,
itself and is not likely to be listed for final hearing in the near
future and on this score alone appellant deserves bail. In
support of his submissions learned counsel relied upon the
legal report of Hon’ble Supreme Court as available through
Atul @ Ashutosh Vs. State of Madhya Pradesh,
reported in [(2024) 3 SCC 663].
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
12/17
6. Learned APP appearing on behalf of respondent-
State, while opposing the prayer of bail and suspension of
sentence could not dispute the factual and legal submission as
advanced by learned counsel for the appellant.
7. In view of above discussed factual and legal
submissions and by taking note of fact as both appellants
were laborers engaged in unloading of consignment of liquor
from the truck prima-facie, making their knowledge doubtful
qua contents of the carton, where accused/appellants remains
in custody for about sixteen months each against maximum
fixed term sentence of seven years through impugned
judgment and as this appeal is not likely to be taken up for
final hearing in the near future, as same is of year 2024,
accordingly by taking note of legal ratio as available through,
Atul @ Ashutosh Case (supra) accused/appellants, above
named, are directed to be released on bail in Trial No. 6513 of
2022 arising out of Dumra P.S. Case No. 194 of 2021 on
furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand)
with two sureties of the like amount each to the satisfaction of
learned Additional District and Sessions Judge-cum-Exclusive
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
13/17
Special Judge, Excise 1, Sitamarhi/concerned Court, during
pendency of appeal.
8. Sentence of imprisonment imposed on the
appellant is suspended till disposal of the appeal and recovery
of fine be also kept in abeyance.
9. Appellant shall co-operate in disposal of this
appeal.
10. Observations, as regard to merit, if any, shall be
of no bearing while final hearing of this appeal.
11. Re-notify this case as per its own seriatim for
hearing.
CRIMINAL APPEAL (SJ) No.2330 of 2024
Heard learned counsel appearing on behalf of the
parties.
2. The present matter was taken on board for
considering prayer of bail and suspension of sentence under
Section 389 (1) of the Code of Criminal Procedure (in short
Cr.P.C.)/Section 430(1) of BNSS as raised through memo of
appeal, itself as preferred under Section 374(2) of the
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
14/17
Cr.P.C./ Section 415 (2) of BNSS.
3. The appellants have been convicted by the
judgment of conviction dated 22.03.2024 and order of
sentence dated 30.03.2024 passed by learned Additional
District and Sessions Judge-cum-Exclusive Special Judge,
Excise 1, Sitamarhi in Trial No. 6513 of 2022 arising out of
Dumra P.S. Case No. 194 of 2021, whereby they have been
convicted under Section 30(a) of the Bihar Prohibition and
Excise Act and they have been sentenced to undergo simple
imprisonment for seven years and fine of Rs. 1,00,000/- and
in default of payment of fine, further undergo simple
imprisonment for three months for the aforesaid offence.
4. Learned counsel for the appellants submitted that
P.W. 2 namely Pintu Kumar, who is local chowkidaar and also
one of the seizure list witness of the recovery of illicit liquor
could not identify both appellants beyond doubt during the
trial making implication of appellants doubtful on its face. It is
submitted that other prosecution witnesses including P.W.
7/informant & P.W. 8/I.O. could not connect both the
appellants with recovered seized motorcycle carrying illicit
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
15/17
liquor during the trial making recovery of illicit liquor doubtful
from the conscious possession of these appellants. It is
submitted that with such evidence recording of conviction by
learned trial court prima-facie appears questionable.
5. While concluding the argument learned counsel
submitted that with aforesaid evidence balance of appeal
appears in favour of appellant, where appellant remains in
custody for about sixteen months against the fixed term
sentence of seven years as ordered through impugned
judgment. It is further submitted that appeal is of year 2024,
itself and is not likely to be listed for final hearing in the near
future and on this score alone appellant deserves bail. In
support of his submissions learned counsel relied upon the
legal report of Hon’ble Supreme Court as available through
Atul @ Ashutosh Vs. State of Madhya Pradesh,
reported in [(2024) 3 SCC 663].
6. Learned APP appearing on behalf of respondent-
State, while opposing the prayer of bail and suspension of
sentence could not dispute the factual and legal submission as
advanced by learned counsel for the appellant.
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
16/17
7. In view of above discussed factual and legal
submissions and by taking note of fact as recovery of illicit
liquor appears doubtful from the conscious physical
possession of appellants out of testimony of prosecution
witness particularly P.W. 2, where accused/appellants
remains in custody for about sixteen months each, against
maximum fixed term sentence of seven years and as this
appeal is not likely to be taken up for final hearing in the near
future, as same is of year 2024, accordingly by taking note of
legal ratio as available through, Atul @ Ashutosh Case
(supra) both accused/appellants, above named, are directed
to be released on bail in Trial No. 6513 of 2022 arising out of
Dumra P.S. Case No. 194 of 2021 on furnishing bail bond of
Rs.10,000/- (Rupees Ten Thousand) with two sureties of the
like amount each to the satisfaction of learned Additional
District and Sessions Judge-cum-Exclusive Special Judge,
Excise 1, Sitamarhi/concerned Court, during pendency of
appeal.
8. Sentence of imprisonment imposed on the
appellant is suspended till disposal of the appeal and recovery
Patna High Court CR. APP (SJ) No.2533 of 2024(4) dt.03-01-2025
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of fine be also kept in abeyance.
9. Appellant shall co-operate in disposal of this
appeal.
10. Observations, as regard to merit, if any, shall be
of no bearing while final hearing of this appeal.
11. Re-notify this case as per its own seriatim for
hearing.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
U T