Patna High Court
Sawan Kumar @ Sawant KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJESH KUMAR VERMA
Holding
In the absence of any material seized from the petitioner’s possession and given procedural lapses, anticipatory bail may be granted notwithstanding Section 76(2) of the Bihar Prohibition and Excise Act.
Summary
The petitioner, Sawan Kumar, was implicated in an FIR for the alleged possession of 439.89 litres of illicit foreign liquor under Section 30(a) of the Bihar Prohibition and Excise Act, based solely on the disclosure of a co‑accused. No liquor was recovered from his conscious possession and he was not apprehended at the scene. He applied for anticipatory bail, arguing that the prosecution’s case rests only on the co‑accused’s statement and that mandatory recovery procedures under Section 100 of the CrPC/Section 103 of the Bhartiya Nagarik Suraksha Sanhita were not complied with. The State opposed bail, invoking Section 76(2) of the Bihar Prohibition and Excise Act and citing the petitioner’s other pending cases. Relying on the Full Bench decision in Ram Vinay Yadav v. State of Bihar and noting the lack of material evidence, the court granted anticipatory bail with a bond of Rs 10,000 and two sureties, subject to conditions under Section 438(2) CrPC/Section 482(2) B.N.S. and further compliance requirements.
Issues considered
- Can anticipatory bail be granted when the only evidence against the accused is the testimony of a co‑accused?
- Does Section 76(2) of the Bihar Prohibition and Excise Act bar the grant of pre‑arrest bail?
- Do non‑compliance with mandatory recovery procedures under Section 100 CrPC/Section 103 B.N.S. affect the bail decision?
Legislation cited
- Bhartiya Nagarik Suraksha Sanhita — s. 103, 482(2)
- Code of Criminal Procedure — s. 100, 438(2)
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Act
- illicit liquor
- procedural lapse
- co‑accused testimony
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.28326 of 2026
Arising Out of PS. Case No.-20 Year-2026 Thana- Vasudevpur District- Munger
======================================================
Sawan Kumar @ Sawant Kumar S/o Sanjay Sah R/o Village - Shyampur, P.S
- Basudeopur, Distt.- Munger
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shashi Saurabh, Advocate
For the Opposite Party/s : Mrs. Dr. Indiwar Kumari, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
2 23-04-2026 Heard Mr. Shashi Saurabh, learned counsel for the
petitioner and Mrs. Dr. Indiwar Kumari, learned Additional
Public Prosecutor for the State appeared through the virtual
mode.
2. The petitioner is apprehending his arrest in
connection with Basudeopur P.S. Case No. 20/2026, F.I.R. dated
17.02.2026 for the offences punishable under Section 30(a) of
the Bihar Prohibition and Excise Act.
3. Recovery is of 439.89 liters of illicit foreign
liquor.
4. Learned counsel for the petitioner submits that
the petitioner is innocent and has falsely been implicated in the
present case. He further submits that it appears from the F.I.R. as
well as seizure list that nothing has been recovered from the
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conscious possession of the petitioner and the petitioner was not
apprehended at the spot. The name of the petitioner has been
transpired on the basis of the disclosure made by the co-accused
person, namely, Rahul Kumar and except the disclosure made
by the co-accused person nothing has come during investigation
in the present occurrence against the petitioner to suggest the
involvement of the petitioner in the present occurrence. The co-
accused persons, namely, Sourav Kumar and Vishal Kumar have
been granted priviledge of anticipatory bail by this Hon’ble
Court vide order dated 17.04.2026 passed in Cr. Misc. No.
23075 of 2026 and 25000 of 2026 respectively. There is non-
compliance with mandatory procedure prescribed for recovery
under Section 100 of Cr.P.C / Section 103 of Bhartiya Nagarik
Suraksha Sanhita. No case, whatsoever, would be made out
against the petitioner under the Bihar Prohibition and Excise
Act.
5. The learned Additional Public Prosecutor has
vehemently opposed the prayer for anticipatory bail of the
petitioner referring the provision contained in Section 76(2) of
the Bihar Prohibition and Excise Act and submitted that the pre-
arrest bail would not be maintainable. It is further submitted that
the petitioner carries three more cases other than the present one
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but fairly submits that on the basis of paragraph-3 of the bail
application, the petitioner is on bail in all the cases.
6. This court is aware of the decision of the Full
Bench in the case of Ram Vinay Yadav vs. State of Bihar
reported in 2019(2) P.L.J.R. 1089. Having regard to the law laid
down in the aforesaid judgment and the submission advanced on
behalf of the parties, this Court, for the limited purpose of grant
of anticipatory bail, is inclined to accept the submission of
counsel for the petitioner.
7. Considering the aforesaid facts, nothing has been
recovered from conscious possession of the petitioner, let the
petitioner, above named, in the event of his arrest or surrender
before the court below within a period of thirty days from the
date of receipt of the order, be released on bail on furnishing bail
bond of Rs. 10,000/- (Ten Thousand) with two sureties of the
like amount each to the satisfaction of the learned Exclusive
Special Judge Excise II, Munger in connection with Basudeopur
P.S. Case No. 20/2026, subject to the conditions as laid down
under Section 438(2) of the Code of Criminal Procedure /
Section 482(2) of the Bhartiya Nagarik Suraksha Sanhita and
with other following conditions:-
i. Petitioner shall co-operate in the trial and shall be
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properly represented on each and every date fixed by the court
and shall remain physically present as directed by the court and
on his absence on two consecutive dates without sufficient
reason, his bail bond shall be cancelled by the Court below.
ii. If the petitioner tampers with the evidence or the
witnesses, in that case, the prosecution will be at liberty to move
for cancellation of bail.
iii. And further condition that the court below shall
verify the criminal antecedent of the petitioner and in case at
any stage it is found that the petitioner has concealed his
criminal antecedent, the court below shall take step for
cancellation of bail bond of the petitioner. However, the
acceptance of bail bonds in terms of the above-mentioned order
shall not be delayed for purpose of or in the name of
verification.
(Rajesh Kumar Verma, J)
atul/-
U T
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