Patna High Court
Md. Irshad @ BachheversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- SATYAVRAT VERMA
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
- Code of Criminal Procedure, 1973 — s. 438(2), 482(2)
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
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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
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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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