Patna High Court
Fulena RaiversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- RAJIV ROY
Holding
The court granted anticipatory bail to petitioners Kanhai Rai and Rohit Kumar with conditions, holding that the bar under section 76(2) does not preclude bail where no offence is made out.
Summary
The petitioners, Fulena Rai, Kanhai Rai and Rohit Kumar, sought anticipatory bail in connection with a police case (Kesariya PS Case No. 486 of 2025) alleging offences under sections 274 and 275 of the Bihar Non‑Excise Act and section 30(a) of the Bihar Prohibition and Excise Act for the alleged manufacture and possession of country‑made liquor. The prosecution claimed that a raid recovered 145 litres of illicit liquor and 6,000 litres of raw material, and that a local chowkidar named the petitioners. The petitioners contended they had no role, were named out of enmity, and relied on the Full Bench decision in Ram Vinay Yadav v. State of Bihar which allows anticipatory bail despite the bar in section 76(2) if no offence is made out. The court, after considering the submissions and noting the absence of possession and the petitioners' undertaking to cooperate, granted anticipatory bail to Kanhai Rai and Rohit Kumar with strict conditions, while dismissing the withdrawn application of Fulena Rai. The order imposed a bail bond of Rs 10,000 with two sureties and detailed compliance requirements.
Issues considered
- Whether anticipatory bail can be granted in a case arising under the Bihar Prohibition and Excise Act despite the bar under section 76(2) of the Act.
- Whether the petitioners can be said to have committed an offence given the alleged lack of possession and the circumstances of the naming by the chowkidar.
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Act
- Bihar Non‑Excise Act
- illicit liquor
- bail conditions
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15320 of 2026
Arising Out of PS. Case No.-486 Year-2025 Thana- KESARIA District- East Champaran
======================================================
1. Fulena Rai S/O Late Rama Rai Resident of Village- Karhan, P.S- Kesariya,
District- East Champaran.
2. Kanhai Rai S/O Late Daroga Rai Resident of Village- Karhan, P.S- Kesariya,
District- East Champaran.
3. Rohit Kumar @ Bhageshwar Kumar Yadav @ Rohit S/O Kanhai Rai
Resident of Village- Karhan, P.S- Kesariya, District- East Champaran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Karandeep Kumar, Advocate
Mr. Mritunjay Kumar, Advocate
For the Opposite Party/s : Mrs. Pushpa Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 12-03-2026 Learned counsel for the petitioner prays for and is
allowed to withdraw the anticipatory bail application of
petitioner no. 1, Fulena Rai.
2. The anticipatory bail application with respect to
petitioner no. 1, Fulena Rai stands dismissed as withdrawn.
3. Heard the parties.
4. The petitioners are apprehending their arrest in
connection with Kesariya P.S. Case No. 486 of 2025 for the
offence under sections 274 and 275 of the BNS and Sections
30(a) of the Bihar Prohibition and Excise Act lodged on
23.10.2025 by the informant, Dhananjay Kumar.
Patna High Court CR. MISC. No.15320 of 2026(2) dt.12-03-2026
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5. As per the prosecution story, the Police on secret
information, raided the boat and there is recovery/seizure of 145
liters of country-made liquor beside 6,000/- liters of liquor for
preparing the country-made liquor. The local chowkidar named
him which led to the FIR.
6. Learned counsel for the petitioners submit that they
have no role to play in the matter and only due to enmity, the
chowkidar named him.
7. Further, learned counsel for the petitioners relied on
the judgment of the Full Bench of Hon’ble Patna High Court in
the case of Ram Vinay Yadav vs. State of Bihar reported in
2019 (2) PLJR 1089 wherein it has been held that an
application for anticipatory bail in a case arising out of Bihar
Excise and Prohibition Act can be maintained, despite the bar
under Section 76(2) of the Act, if on the basis of allegation
made in the FIR, no offence under the said provision is made
out.
8. Learned APP opposes the prayer submitting that the
chowkidar has named them and both of them have one criminal
antecedent.
9. Taking into account the submissions of the parties
and the judgment in the case of Ram Vinay Yadav (supra), as
Patna High Court CR. MISC. No.15320 of 2026(2) dt.12-03-2026
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also that nothing has been recovered from their conscious
possession and an undertaking has been given that they shall be
diligently appearing in the trial, in that background, this Court is
inclined to extend them the privilege of anticipatory bail with
conditions.
10. Let the petitioner no. 2, Kanhai Rai and petitioner
no. 3, Rohit Kumar be released on bail in the event of arrest or
surrender within a period of four weeks from the receipt of this
order, on furnishing bail bond of Rs. 10,000/- (Ten thousand)
with two sureties of like amount each to the satisfaction of
learned Exclusive Special Excise Court No. 3, East Champaran,
Motihari in connection with Kesariya P.S. Case No. 486 of 2025
subject to the following conditions:
(i) one of the bailor should be the family
member/relative of the petitioner no. 2, Kanhai Rai and
petitioner no. 3, Rohit Kumar who shall provide official
document to show his/her bona fide;
(ii) the petitioner no. 2, Kanhai Rai and petitioner no.
3, Rohit Kumar shall be appearing before the Police Station as
and when required for cooperating in the investigation;
(iii) the petitioner no. 2, Kanhai Rai and petitioner no.
3, Rohit Kumar shall appear on each and every date before the
Patna High Court CR. MISC. No.15320 of 2026(2) dt.12-03-2026
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Trial Court and failure to do so for two consecutive dates
without plausible reason will entail cancellation of their bail
bond by the Trial Court itself;
(iv) the petitioner no. 2, Kanhai Rai and petitioner no.
3, Rohit Kumar shall appear before the concerned police station
every fortnight for six months to mark their attendance and after
the end of the period, the certificate shall be submitted before
the Trial Court failing which steps shall be taken for the
cancellation of the bail bonds;
(v) the petitioner no. 2, Kanhai Rai and petitioner no.
3, Rohit Kumar shall in no way try to induce or promise or
threat the witnesses or tamper with the evidences, failing which
the State shall be at liberty to take steps for cancellation of the
bail bonds;
(vi) the petitioner no. 2, Kanhai Rai and petitioner no.
3, Rohit Kumar shall desist from committing any criminal
offence again, failing which the State shall be at liberty to take
steps for cancellation of their bail bonds.
(Rajiv Roy, J)
Adnan/-
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