Patna High Court
Kamlesh Choudhary @ Kamlesh KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJIV ROY
Holding
Anticipatory bail is granted as the petitioner has no possession of the seized liquor, no criminal antecedent, and the Full Bench precedent allows bail despite Section 76(2) where no offence is established.
Summary
The petitioner, Kamlesh Choudhary, sought anticipatory bail fearing arrest in a case under sections 30(a) of the Bihar Prohibition and Excise Act, where 35 litres of country-made liquor were seized and a co-accused named him in the FIR. He argued that nothing was recovered from his conscious possession and he had no criminal antecedent. Relying on the Patna High Court Full Bench decision in Ram Vinay Yadav v. State of Bihar, which permits anticipatory bail despite the bar in Section 76(2) if no offence is made out, the court examined the merits. The State opposed, citing the co-accused’s statement. The court, noting the lack of possession, clean antecedent, and the precedent, granted anticipatory bail with a set of conditions, ordering release on bail if arrested within four weeks upon furnishing a bond and sureties.
Issues considered
- Can anticipatory bail be granted in a case under the Bihar Prohibition and Excise Act despite the bar under Section 76(2) when no offence is made out?
- Does the testimony of a co-accused, without material possession or antecedent, justify denial of anticipatory bail?
- Whether the petitioner is entitled to bail on the ground of lack of conscious possession and clean record.
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Act
- Section 30(a)
- Section 76(2)
- seizure of liquor
- no possession
- criminal antecedent
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.31332 of 2026
Arising Out of PS. Case No.-38 Year-2026 Thana- Karvandiya District- Rohtas
======================================================
Kamlesh Choudhary @ Kamlesh Kumar S/O Banarsi Choudhary @ Banarsi
Chauhan R/O Vill.- Jamhuara, P.S.- Obra, Dist. - Aurangabad. At Present R/O
Dayal Bigha, P.S.- Karwandiya, Dist.- Rohtas.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vinay Kumar Singh, Advocate
For the State : Mr. Md. Iftekhar Mahmood, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 07-05-2026 Heard the parties.
2. The petitioner is apprehending his arrest in
connection with Karwandiya P.S. Case No. 38 of 2026 for the
offence under sections 30(a) of the Bihar Prohibition and Excise
Act lodged on 14.03.2026 by the informant, Kamleshwar
Mahto.
3. As per the prosecution story, the informant alleged
that on secret information, the Police reached near Karwandiya
Dam and waited for the movement of the accused. Later, they
found that some of the accused are reaching the place and on
interception, there is recovery/seizure of 35 liters country made
liquor. Raju Kole was taken into custody who gave the name of
the other accused, the petitioner included. This led to the FIR.
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4. Learned counsel for the petitioner submits that
nothing has been recovered from his conscious possession nor
he has criminal antecedent, only because Raju Kole gave the
name, implicated.
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 APP opposes the prayer submitting that the
person arrested, named him.
7. Taking into account the submissions of the parties
and the judgment in the case of Ram Vinay Yadav (supra), as
also that nothing has been recovered from his conscious
possession and has no criminal antecedent, in that background,
this Court is inclined to extend him the privilege of anticipatory
bail with conditions.
8. Let the petitioner be released on bail in the event of
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arrest or surrender 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 like amount each to the
satisfaction of learned Exclusive Special Judge Excise Court
No.-II, Rohtas at Sasaram in connection with Karwandiya P.S.
Case No. 38 of 2026 subject to the following conditions:
(i) one of the bailor should be the family
member/relative of the petitioner who shall provide official
document 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
police station every fortnight for six months to mark his
attendance and after the end of the period, the certificate shall be
submitted before the Trial Court failing which steps shall be
taken for the cancellation of the bail bonds;
(v) the petitioner shall in no way try to induce or
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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)
vinayak/-
U T
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