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Patna High Court

Phoolbabu Kumar @ Phoolbabu SahversusThe State of Bihar

Decided
Disposal
DISPOSED

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

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
                                            2/3




          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
                                                           3/3




                         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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