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Patna High Court

Fulena RaiversusThe State of Bihar

Decided
Disposal
DISPOSED

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to cooperate, granted anticipatory bail to Kanhai Rai and Rohit Kumar with strict conditions, while dismissing the withdrawn application of Fulena Rai.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
                                            3/4




          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
                                                      4/4




                    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/-

U     T


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