Patna High Court
Phoolbabu Kumar @ Phoolbabu SahversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- SATYAVRAT VERMA
Holding
The Court held that anticipatory bail may be granted where the petitioner is not in custody, no possession of the alleged contraband is established, and his criminal antecedent does not exceed two cases, subject to verification by the trial court.
Summary
Phoolbabu Kumar applied for anticipatory bail under Section 438 of the Criminal Procedure Code in connection with a case registered under Section 30(a) of the Excise Act for alleged recovery of 4.455 litres of liquor from a poultry farm. The petitioner argued that he was not arrested, no liquor was found in his possession, and the alleged recovery occurred on premises that do not belong to him, suggesting a possible false implication. The State opposed the bail, citing the petitioner’s two prior Excise cases. The Court considered the lack of arrest, absence of possession, and the limited criminal antecedent, and directed that provisional anticipatory bail be granted on condition of furnishing bail bonds and two sureties. The order also directed the trial court to verify the petitioner’s antecedent; if more than two prior cases are found, the bail would be revoked, otherwise it would be confirmed.
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 prior criminal antecedent of two Excise cases precludes grant of anticipatory bail
- Whether the absence of arrest and lack of possession of the alleged contraband justify anticipatory bail
Legislation cited
- Code of Criminal Procedure, 1973 — s. 438
- Excise Act — s. 30(a)
Subjects
- anticipatory bail
- Section 438 CrPC
- Excise Act
- criminal antecedent
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.26328 of 2026
Arising Out of PS. Case No.-72 Year-2026 Thana- KALYANPUR District- Samastipur
======================================================
Phoolbabu Kumar @ Phoolbabu Sah S/o- Shobhit Sah Vill- Singhia, P.S-
Kalyanpur, Dist- Samastipur
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Amar Kumar Singh
For the Opposite Party/s : Mr.Akbar Ali
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 22-04-2026 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 two cases under the Excise Act
and allegation is of recovery of 4.455 litres of liquor from south
wall of the poultry farm.
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 alleged
recovery is from a place, which does not belong to the petitioner
and petitioner has no concern with the poultry farm and he came
Patna High Court CR. MISC. No.26328 of 2026(2) dt.22-04-2026
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to be implicated at the instance of local person. It is next
submitted that police in majority of cases implicating innocent
persons either at the behest of Chaukidar, local person, secret
information and confessional statement in a mechanical manner
without holding a proper investigation.
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.10,000/- (Rupees Ten 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 Kalyanpur P. S. Case No.72 of 2026, 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 two cases,
Patna High Court CR. MISC. No.26328 of 2026(2) dt.22-04-2026
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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 two cases only, in that event,
the provisional anticipatory bail order shall be confirmed
forthwith.
(Satyavrat Verma, J)
vikash/-
U T
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