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Patna High Court

Md. Irshad @ BachheversusThe State of Bihar

Decided
Disposal
DISPOSED

Holding

The Court conditionally granted provisional anticipatory bail, subject to verification of the petitioners' criminal antecedents.

Summary

The petitioners, Md. Irshad and Md. Raja, feared arrest in a case under Section 30(a) of the Bihar Prohibition and Excise (Amendment) Act, 2022, alleging that liquor was recovered from a house that is a joint family property. They argued that they were not in actual possession, that the concept of deemed possession was abolished, and that the complaint originated from a hostile watchman. The State opposed their application for anticipatory bail. The Court, after hearing both sides, granted provisional anticipatory bail on the condition that the petitioners furnish bail bonds and two sureties, and that the trial court verify their criminal antecedents. The order stipulated that if the antecedent verification shows more than the stated cases, the bail would not be confirmed; otherwise, it would be confirmed forthwith.

Issues considered

  • Whether anticipatory bail should be granted to the petitioners under Section 438 of the Cr.P.C. in an excise offence case.
  • Whether the concept of deemed possession under the Excise Act applies to the facts of this case.
  • Whether the petitioners' criminal antecedents affect the grant of anticipatory bail.

Legislation cited

Subjects

  • anticipatory bail
  • excise law
  • deemed possession
  • joint family property
  • criminal antecedent
  • Section 30
  • Bihar Prohibition and Excise Act
  • Section 438 CrPC
  • Section 482 CrPC

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.25240 of 2026
                       Arising Out of PS. Case No.-4 Year-2026 Thana- BOKHRA District- Sitamarhi
                 ======================================================
           1.     Md. Irshad @ Bachhe Son of Mohammad Mosalim @ Md. Muslim
                  Residents of Village- Mahisautha, Police Station- Bokhra, District-
                  Sitamadhi
           2.     Md. Raja son of Md. Mosim Residents of Village- Mahisautha, Police
                  Station- Bokhra, District- Sitamadhi
                                                                       ... ... Petitioner/s
                                                     Versus
                 The State of Bihar
                                                                ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Shashank Shekhar, Advocate
                 For the Opposite Party/s :       Mr. Suresh Prasad Singh, A.P.P.
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
                                       ORAL ORDER

2   18-04-2026                  1. Heard learned counsel for the petitioners and learned

                   A.P.P. for the State.

                                2. The petitioners apprehend their arrest in a case

                   registered for the offence punishable under Section 30(a) of the Bihar

                   Prohibition and Excise (Amendment) Act, 2022.

                                3. Learned counsel for the petitioners submits that

                   petitioner no. 1 has antecedent of three cases under the Excise Act

                   and petitioner no. 2 is a person with clean antecedent and allegation

                   is of recovery of 32.85 litres of liquor from the house of Md. Irshad

                   @ Bacche (petitioner no. 1) and 311.46 litres of liquor from the

                   house of Sushil Kumar Yadav along with 100-150 litres Mahua

                   jaggery solution which was destroyed.

                                4. Learned counsel for the petitioners submits that

                   petitioners were not arrested from the spot, as such, nothing was
Patna High Court CR. MISC. No.25240 of 2026(2) dt.18-04-2026
                                            2/3




          recovered from their conscious possession. It is further submitted that

          the house in question is a joint family property, as such, it cannot be

          alleged with certainty that it was the petitioner no. 1 who had kept

          the liquor in the house or the liquor kept in the house was within his

          knowledge and after amendment in the Excise Act in the year 2018,

          the concept of deemed possession and presumed offender has been

          done away with. It is next submitted that petitioners came to be

          implicated at the instance of the Chawkidar with whom they are on

          an inimical term. It is next submitted that once an accused is

          implicated in a case relating to excise the police start implicating

          mechanically either at the instance of the Chawkidar, local person,

          confessional statement or secret information without holding a proper

          investigation of the case.

                       5. Learned A.P.P. for the State opposes the prayer for

          anticipatory bail of the petitioners.

                       6. Considering the submissions made by the learned

          counsel appearing on behalf of the petitioners, let the petitioners,

          above-named, in the event of their arrest or surrender within a period

          of six weeks from today, be released on provisional anticipatory bail

          on furnishing bail bonds of Rs.15,000/- (Rupees Fifteen Thousand)

          each 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 Bokhra P.S. Case No. 04 of 2026, subject to the

          conditions as laid down under Section 438(2) of the Cr.P.C./482(2) of
           Patna High Court CR. MISC. No.25240 of 2026(2) dt.18-04-2026
                                                       3/3




                     the B.N.S.S.

                                  7. However, it is made clear that thereafter the learned

                     Trial Court shall verify the criminal antecedent of the petitioners and

                     if it is found that petitioner no. 1 has antecedent of more than three

                     cases and petitioner no. 2 has antecedent of even one case, it would

                     be presumed that petitioners had concealed their antecedent before

                     this Court, at para 3 of the anticipatory bail application, in that event,

                     the provisional anticipatory bail order shall not be confirmed, but, if

                     it is found on verification that petitioner no. 1 has antecedent of only

                     three cases and petitioner no. 2 is a person with clean antecedent, in

                     that event, the provisional anticipatory bail order shall be confirmed

                     forthwith.


                                                                          (Satyavrat Verma, J)

Kundan/-

U     T


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