Patna High Court
Kundan Kumar YadavversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJIV ROY
Holding
The Court held that anticipatory bail should be granted as no offence was made out against the petitioner.
Summary
The petitioner, Kundan Kumar Yadav, owner of an e‑rickshaw, was implicated in a case (Mahua P.S. Case No. 49 of 2025) for allegedly transporting 153 litres of Nepali liquor, leading to an FIR under Section 30(a) of the Bihar Prohibition and Excise Amendment Act, 2022. He applied for anticipatory bail, claiming he merely handed the vehicle to a driver and had no knowledge of the liquor and no prior criminal record. The State opposed, arguing ownership of the vehicle made him liable. The Court, relying on the precedent Ram Vinay Yadav v. State of Bihar (2019 (2) PLJR 1089) which permits anticipatory bail despite Section 76(2) if no offence is made out, and noting the absence of possession or recovery from his house, granted anticipatory bail with strict conditions. The bail order required a bond of Rs.10,000 with two sureties, regular police appearances, and compliance with conditions under Section 438(2) of the Cr.P.C.
Issues considered
- Whether anticipatory bail can be granted under Section 438 Cr.P.C. in a case arising under the Bihar Prohibition and Excise Amendment Act despite the bar in Section 76(2).
- Whether ownership of the vehicle used for alleged transport makes the petitioner liable for the offence.
- Whether the lack of possession of the liquor by the petitioner negates the existence of an offence.
Legislation cited
- Criminal Procedure Code (Cr.P.C.) — s. 438(2)
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Amendment Act
- Section 30
- Section 438
- vehicle ownership
- possession
- bail conditions
- criminal antecedent
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.25864 of 2026
Arising Out of PS. Case No.-49 Year-2025 Thana- MAHUAWA District- East Champaran
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Kundan Kumar Yadav S/o Om Prakash Yadav R/o Village - Bindwasani
Hanuman Nagar, P.S - Mahuawa, District - East Champaran
... ... Petitioner/s
Versus
The State of Bihar Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Kundan Rathore Alias Kundan Kumar, Adv.
For the Opposite Party/s : Mrs.Veena Kumari Jaiswal, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 22-04-2026 Heard Mr. Kundan Rathore, learned counsel for the
petitioner and the State.
2. The petitioner is apprehending arrest in connection
with Mahuawa P.S. Case No. 49 of 2025 instituted under
Section 30(a) of the Bihar Prohibition and Excise Amendment
Act, 2022 lodged on 21.05.2025 by the informant, Birsa Uraon.
3. As per the prosecution story, the Police intercepted
an E-Rickshaw and there is recovery/seizure of 153 liters of
Nepali liquor. This led to the FIR.
4. Learned counsel for the petitioner submits that the
E-Rickshaw is being owned by him which was handed over to
the driver, Raj Kumar Mahto. He had no knowledge about the
transportation of the wine. The last submission is that the
petitioner do not have criminal antecedent.
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5. Further, learned counsel for the petitioner relied on
the judgment of the Full Bench of Hon’ble Patna High Court in
the case of Ram Vinay Yadav vs. State of Bihar reported in
2019 (2) PLJR 1089 wherein it has been held that an
application for anticipatory bail in a case arising out of Bihar
Excise and Prohibition Act can be maintained, despite the bar
under Section 76(2) of the Act, if on the basis of allegation
made in the FIR, no offence under the said provision is made
out.
6. Learned counsel for the petitioner further
undertakes that he shall not indulge in any criminal activity and
if it is found that he is indulged in any criminal activity in
future, the State can take steps for cancellation of present bail
bond.
7. Learned APP opposes the prayer submitting that the
he is owner of the vehicle.
8. Taking into account the submissions aforesaid
coupled with the fact that he do not have criminal antecedent
and the person with liquor already stands apprehended and the
judgment in the case of Ram Vinay Yadav (supra), as also that
nothing has been recovered from his conscious possession or
from the house, in that background, this Court is inclined to
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extend him the privilege of anticipatory bail.
9. Let the petitioner be released on bail, in the event
of his arrest or surrender before the concerned court within a
period of four weeks from the receipt of this order, on furnishing
bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of
the like amount each in connection with Mahuawa P.S. Case No.
49 of 2025 to the satisfaction of learned Exclusive Special
Excise Court No.2, East Champaran, Motihari subject to the
conditions as laid down under Section 438(2) of the Cr.P.C. as
also the other conditions.
(i) one of the bailor should be the family
member/relative of the petitioner who shall provide official
document (Aadhar Card/Driving License/Voter ID/Pan Card
etc.) to show his/her bona fide;
(ii) the petitioner shall be appearing before the police
station as and when required for cooperating in the
investigation;
(iii) the petitioner shall appear on each and every date
before the Trial Court and failure to do so for two consecutive
dates without plausible reason will entail cancellation of his
bail bond by the Trial Court itself;
(iv) the petitioner shall appear before the concerned
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police station every day for one month and later every fortnight
for next six months to mark his attendance and at the end of the
period a certificate be submitted before the Trial Court failing
which the State shall be at liberty to take steps for cancellation
of bail bonds;
(v) the petitioner shall in no way try to induce or
promise or threat the witnesses or tamper with the evidences,
failing which the State shall be at liberty to take steps for
cancellation of the bail bonds;
(vi) the petitioner shall desist from committing any
criminal offence again, failing which the State shall be at liberty
to take steps for cancellation of his bail bonds.
(Rajiv Roy, J)
Ravi/-
U T
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