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Patna High Court

Ajit Kumar @ Ajit MahtoversusThe State of Bihar

Decided
Disposal
DISPOSED

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
                                            3/4




          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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