Patna High Court
Babita deviversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- SATYAVRAT VERMA
Holding
The court held that anticipatory bail may be granted under Section 438 CrPC despite the alleged Excise offence, provided the petitioner has a clean antecedent and complies with the stipulated conditions.
Summary
Babita Devi applied for anticipatory bail under Section 438 of the Criminal Procedure Code in connection with a case under Section 30(a) of the Excise Act alleging recovery of 35 litres of liquor from her residence. She argued that she has a clean antecedent, is a woman, and that the liquor was located in a joint family house, not in her conscious possession, and that the allegation was fabricated by a watchman hostile to her husband. The State opposed the bail. The High Court, considering these submissions, directed that she be released on provisional anticipatory bail upon furnishing bail bonds of Rs.500 with two sureties, subject to verification of her antecedent and compliance with Section 438(2) conditions. The court clarified that if any criminal antecedent is discovered, the bail would not be confirmed. The application was allowed conditionally.
Issues considered
- Whether anticipatory bail can be granted under Section 438 CrPC for an offence punishable under Section 30(a) of the Excise Act.
- Whether the absence of conscious possession and the joint family nature of the property negate the presumption of guilt.
- Whether the amendment removing the concept of deemed possession affects the bail application.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 438(2)
- Excise Act — s. 30(a)
Subjects
- anticipatory bail
- Section 438
- Excise Act
- possession
- joint family property
- clean antecedent
- provisional bail
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.22434 of 2026
Arising Out of PS. Case No.-689 Year-2025 Thana- DHAKA District- East Champaran
======================================================
Babita Devi, W/o Samnarayan Mukhiya Resident of village -Badharawa
Siwan, P.S.- Dhaka, Distt- East Champaran
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Manoj Kumar
For the Opposite Party/s : Mr.Nand Kumar
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 08-04-2026 1. Heard learned counsel for the petitioner and
learned APP for the State.
2. The petitioner seeks bail in anticipation of her
arrest in a case registered for the offences punishable under
Section 30(a) of the Excise Act.
3. The learned counsel for the petitioner submits that
the petitioner is a person with clean antecedent and is a woman
and allegation is of recovery of 35 litres of liquor from house of
the petitioner.
4. The learned counsel for the petitioner submits that
petitioner was not arrested from the spot, as such, nothing was
recovered from her conscious possession and even the house in
question is a joint family property and thus, it cannot be alleged
with certainty that it was the petitioner, who had kept the liquor
Patna High Court CR. MISC. No.22434 of 2026(2) dt.08-04-2026
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in the house or the liquor kept in the house was within her
knowledge and after Amendment in the Excise Act, 2018, the
concept of deemed possession and presumed offender has been
done away with and she came to be implicated at the instance of
Chaukidar with whom her husband is on an inimical term. It is
next submitted that Chaukidar in order to coerce her husband
into submission falsely implicated the petitioner knowing that
house in question is a joint family property.
5. Learned A.P.P. opposes the anticipatory bail
application.
6. Considering the submissions made by the learned
counsel for the petitioner, the petitioner, above-named, in the
event of her arrest or surrender before the learned Court below
within a period of six weeks, is directed to be released on
provisional anticipatory bail on her furnishing bail-bonds in the
sum of Rs.500/- (Rupees Five Hundred) with two sureties of the
like amount each to the satisfaction of the learned Trial Court
where the case is pending/successor Court in connection with
Dhaka P. S. Case No.689 of 2025, subject to the conditions laid
down under Section 438(2) of the Cr.P.C.
7. The application stands allowed.
8. It is made clear that the learned trial Court after
Patna High Court CR. MISC. No.22434 of 2026(2) dt.08-04-2026
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accepting the provisional bail bonds of the petitioner shall verify
the criminal antecedent of the petitioner and in the event, if it is
found that petitioner has antecedent of even one case, then it
would be presumed that petitioner for the purposes of obtaining
anticipatory bail had concealed her antecedent before this Court,
in that event, the present provisional anticipatory bail order shall
not be confirmed, but if on verification, it is found that
petitioner is a person with clean antecedent, in that event, the
provisional anticipatory bail order shall be confirmed forthwith.
(Satyavrat Verma, J)
vikash/-
U T
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