Patna High Court
Ajit Kumar @ Ajit MahtoversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- RAJIV ROY
Holding
The court granted anticipatory bail to petitioners 1 and 2, rejecting the withdrawal of petitioner 3's application and imposing conditions for bail.
Summary
The petitioners, three brothers, sought anticipatory bail in connection with an excise case alleging possession of 990 litres of foreign liquor. They withdrew the application of the third brother, Chandan Kumar, which the court rejected. Relying on a prior Patna High Court decision, the court examined whether anticipatory bail could be granted despite the bar under Section 76(2) of the Bihar Prohibition and Excise Act when the alleged seizure was from an open place and not from conscious possession. The court held that the first two petitioners, Ajit Kumar and Rajesh Kumar, were eligible for anticipatory bail and imposed strict conditions for their release. Consequently, anticipatory bail was granted to the two petitioners, while the application of the third petitioner was dismissed.
Issues considered
- Whether anticipatory bail can be granted under the Bihar Prohibition and Excise Act despite the bar in Section 76(2) when the alleged seizure is from an open place and not from conscious possession.
- Whether the petitioners may withdraw the anticipatory bail application of a co‑petitioner and the effect of such withdrawal.
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Act
- seizure from open place
- conscious possession
- bail conditions
- criminal antecedent
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.20882 of 2026
Arising Out of PS. Case No.-19 Year-2026 Thana- EXCISE ROSERA District- Samastipur
======================================================
1. Ajit Kumar @ Ajit Mahto Son of Jogindra Mahto Residents of Village-
Bambaiya, Ward No. 3, PoliceStation- Dalsinghsarai, District- Samastipur
2. Rajesh Kumar @ Rajesh Mahto Son of Ram Sagar Mahto Residents of
Village- Bambaiya, Ward No. 3, PoliceStation- Dalsinghsarai, District-
Samastipur
3. Chandan Kumar @ Chandan Mahto son of Ram Sagar Mahto Residents of
Village- Bambaiya, Ward No. 3, PoliceStation- Dalsinghsarai, District-
Samastipur
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shashank Shekhar, Advocate
: Ms. Mili Kumari, Advocate
For the State : Mr. Dr. Kumar Uday Pratap, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 08-04-2026 Heard Ms. Mili Kumari, learned counsel for the
petitioners and learned APP representing the State.
2. At the outset, learned counsel for the petitioner
prays for and is allowed to withdraw the anticipatory bail
application of petitioner no.3, Chandan Kumar @ Chandan
Mahto.
3. Accordingly, the anticipatory bail application of
petitioner no.3, Chandan Kumar @ Chandan Mahto is rejected.
4. The petitioners are apprehending their arrest in
connection with Rosera Excise P.S. Case No. 19 of 2026
registered for the offence under Sections 30(a) and 30(c) of the
Bihar Prohibition and Excise Act, lodged on 30.01.2026 by the
informant, Pankaj Kumar.
Patna High Court CR. MISC. No.20882 of 2026(2) dt.08-04-2026
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5. 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.
6. As per the prosecution story, the informant alleged
that on secret information, the place was raided and it was found
that 990 liter foreign liquor was under the soil. This led to the
F.I.R.
7. Learned counsel for the petitioners submit that
recovery/seizure is from an open place and not from the
conscious possession. While petitioner no.1 do not have criminal
antecedent, the petitioner no.2 have two criminal antecedent, if
granted relief they shall be diligently appearing in trial.
8. Learned APP opposes the prayer submitting that on
secret information the place was raided and the locals have
named them.
9. Taking into account the submissions of the parties
as also the fact that the recovery/seizure is from an open place
and not from their conscious possession, this Court is inclined to
Patna High Court CR. MISC. No.20882 of 2026(2) dt.08-04-2026
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extend them the privilege of anticipatory bail.
10. Let the petitioner no.1, Ajit Kumar @ Ajit Mahto
and petitioner no.2, Rajesh Kumar @ Rajesh Mahto 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) each with two sureties of like
amount each to the satisfaction of learned Special Judge Excise-
II, Samastipur, in connection with Rosera Excise P.S. Case No.
19 of 2026 subject to the following conditions:-
(i) one of the bailor should be the family
member/relative of the petitioner no.1, Ajit Kumar @ Ajit Mahto
and petitioner no.2, Rajesh Kumar @ Rajesh Mahto who shall
provide official document (Aadhar Card/Voter Id/Driving
License/Pan Card) to show his/her bona fide;
(ii) the petitioner no.1, Ajit Kumar @ Ajit Mahto and
petitioner no.2, Rajesh Kumar @ Rajesh Mahto shall be
appearing before the Police Station as and when required for
cooperating in the investigation;
(iii) the petitioner no.1, Ajit Kumar @ Ajit Mahto and
petitioner no.2, Rajesh Kumar @ Rajesh Mahto shall appear on
each and every date before the Trial Court and failure to do so
for two consecutive dates without plausible reason will entail
cancellation of his/her bail bond by the Trial Court itself;
Patna High Court CR. MISC. No.20882 of 2026(2) dt.08-04-2026
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(iv) the petitioner no.1, Ajit Kumar @ Ajit Mahto and
petitioner no.2, Rajesh Kumar @ Rajesh Mahto shall appear
before the concerned police station every month for next six
months to mark his attendance and at the end of the period a
certificate be submitted before the Trial Court failing which the
State shall be at liberty to take steps for cancellation of bail
bonds;
(v) the petitioner no.1, Ajit Kumar @ Ajit Mahto and
petitioner no.2, Rajesh Kumar @ Rajesh Mahto 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.1, Ajit Kumar @ Ajit Mahto and
petitioner no.2, Rajesh Kumar @ Rajesh Mahto shall desist from
committing any criminal offence again, failing which the State
shall be at liberty to take steps for cancellation of bail bonds.
(Rajiv Roy, J)
vinayak/-
U T
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