Patna High Court
Nitish Kumar @ Nitish YadavversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- SATYAVRAT VERMA
Holding
The court allowed the anticipatory bail application, subject to bail‑bond conditions and verification of the petitioner’s criminal antecedents.
Summary
The petitioner, Nitish Kumar, applied for anticipatory bail under Section 438 of the Criminal Procedure Code in connection with an alleged offence under Section 30(a) of the Excise Act involving the recovery of 6.375 litres of liquor from a motorcycle. He argued that he was not in conscious possession of the liquor, was not the owner of the motorcycle, and that the case against him was based solely on a confessional statement made by another person in police custody, which he claimed lacked evidentiary value. He further contended that the 2018 amendment to the Excise Act had abolished the concepts of deemed possession and presumed offender. The State opposed the bail. The High Court, after considering the submissions, granted provisional anticipatory bail on the condition that the petitioner furnish a bail bond of Rs.20,000 with two sureties and that the trial court verify his criminal antecedents, revoking the bail if more than four prior cases are found. The order was made subject to the conditions of Section 438(2) CrPC.
Issues considered
- Whether anticipatory bail can be granted under Section 438 CrPC for an offence under Section 30(a) of the Excise Act.
- Whether the petitioner’s lack of conscious possession and the reliance on a confessional statement affect the grant of bail.
- Whether the 2018 amendment to the Excise Act eliminating deemed possession impacts the bail decision.
- Whether the petitioner’s criminal antecedent of four cases is permissible for granting anticipatory bail.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 438(2)
- Excise Act — s. 30(a)
Subjects
- anticipatory bail
- Section 438 CrPC
- Excise Act
- deemed possession
- criminal antecedent
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.23536 of 2026
Arising Out of PS. Case No.-61 Year-2022 Thana- MORKAHI District- Khagaria
======================================================
Nitish Kumar @ Nitish Yadav S/O Ashok Yadav R/O Village- Hara- Hari,
Ward No. 16, P.S- Jamal Nagar, Distt.- Saharsa (Bihar).
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Ms.Seema Kumari
For the Opposite Party/s : Mr.Braj Kishore Pd.(App)
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 09-04-2026 1. Heard learned counsel for the petitioner and
learned APP for the State.
2. The petitioner seeks bail in anticipation of his
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 has antecedent of four cases out of which one case
is under the Excise Act and allegation is of recovery of 6.375
litres of liquor from a motorcycle.
4. The learned counsel for the petitioner submits that
petitioner was not arrested from the spot, as such, nothing was
recovered from his conscious possession and is not the owner of
the seized motorcycle and he came to be implicated based on
confessional statement of Md. Raunak in police custody, which
Patna High Court CR. MISC. No.23536 of 2026(2) dt.09-04-2026
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does not have any evidentiary value. It is also submitted that
after Amendment in the Excise Act, 2018, the concept of
deemed possession and presumed offender has been done away
with.
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 his arrest or surrender before the learned Court below
within a period of six weeks, is directed to be released on
provisional anticipatory bail on his furnishing bail-bonds in the
sum of Rs.20,000/- (Rupees Twenty Thousand) 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 Morkahi P. S. Case No.61 of 2022, G.R.(E)
No.338 of 2022, 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
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 more than four cases,
Patna High Court CR. MISC. No.23536 of 2026(2) dt.09-04-2026
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then it would be presumed that petitioner for the purposes of
obtaining anticipatory bail had concealed his 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 has antecedent of four cases only, in that event,
the provisional anticipatory bail order shall be confirmed
forthwith.
(Satyavrat Verma, J)
vikash/-
U T
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