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Patna High Court

Santosh Kumar @ Santosh MahtoversusThe State of Bihar

Decided
Disposal
DISPOSED

Holding

The Court held that, given the petitioner’s clean antecedent, lack of direct possession and the removal of the deemed‑possession concept, provisional anticipatory bail may be granted subject to verification of antecedent under Section 438(2) CrPC.

Summary

Santosh Kumar 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 for allegedly possessing 17.28 litres of liquor. He argued that he has a clean antecedent, was not arrested at the spot, and the liquor was found in a joint family house, making it uncertain that he had actual possession. The petitioner also contended that the 2018 amendment to the Excise Act abolished the concept of deemed possession, weakening the prosecution’s case. The State opposed the bail. The High Court, considering these submissions, directed that the petitioner be released on provisional anticipatory bail upon furnishing a bail bond of Rs.500 with two sureties, subject to verification of his antecedent, and clarified that the bail would be revoked if any prior case is discovered.

Issues considered

  • Whether anticipatory bail can be granted under Section 438 CrPC for an alleged offence under Section 30(a) of the Excise Act.
  • Whether the absence of direct possession and the fact that the liquor was in a joint family house preclude the grant of anticipatory bail.
  • Whether the 2018 amendment removing the concept of deemed possession affects the prosecution’s case for denial of bail.

Legislation cited

Subjects

  • anticipatory bail
  • Section 438 CrPC
  • Excise Act
  • deemed possession
  • joint family property
  • clean antecedent

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.24424 of 2026
                      Arising Out of PS. Case No.-96 Year-2026 Thana- KADAMKUAN District- Patna
                 ======================================================
                 Santosh Kumar @ Santosh Mahto Son of Late Vishun Mahto @ Vishun
                 Manjhi R/o Village - Musallahpur Mohar Tola, 17 K, Hasanpur Arya Kumar
                 Road, P.S. - Kadamkuan and Distt. - Patna.

                                                                                 ... ... Petitioner/s
                                                      Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :      Mr.Jay Ram Prasad
                 For the Opposite Party/s :      Mr.Shyam Bihari Singh
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
                                       ORAL ORDER

2   20-04-2026                  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 is a person with clean antecedent and allegation is

                   of recovery of 17.28 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 his 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.24424 of 2026(2) dt.20-04-2026
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          in the house or the liquor kept in the house was within his

          knowledge and after Amendment in the Excise Act, 2018, the

          concept of deemed possession and presumed offender has been

          done away with and he came to be implicated at the instance of

          local person, but the name of the person, who disclosed the

          name of the petitioner is not disclosed in the F.I.R., which casts

          an aspersion on the case of the prosecution, when petitioner has

          not been implicated based on secret information and is a person

          with clean antecedent.

                       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.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

          Kadamkuan P. S. Case No.96 of 2026, subject to the conditions

          laid down under Section 438(2) of the Cr.P.C.

                       7. The application stands allowed.
               Patna High Court CR. MISC. No.24424 of 2026(2) dt.20-04-2026
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                                      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 even one case, 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 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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