Patna High Court
Nitish KumarversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- SATYAVRAT VERMA
Holding
The court granted provisional anticipatory bail, subject to verification of the petitioner’s antecedent and compliance with conditions under Section 438(2) CrPC.
Summary
Nitish 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 350 litres of liquor. He argued that he has a clean antecedent, was not arrested at the spot, and that the alleged liquor was recovered from a public place, not from his possession. The petitioner also contended that the amendment to the Excise Act, 2018, abolished the concepts of deemed possession and presumed offender, and that the confessional statements of co‑accused taken in police custody lack evidentiary value. The State opposed the bail. The Patna High Court, after considering the submissions, granted provisional anticipatory bail subject to a bail bond of Rs.500 with two sureties and conditions under Section 438(2) CrPC, directing the trial court to verify the petitioner’s antecedent before confirming the bail.
Issues considered
- Whether anticipatory bail can be granted when the alleged offence under Section 30(a) of the Excise Act involves alleged recovery of liquor from a public place without possession by the accused.
- Whether the amendment to the Excise Act, 2018, which removed the concepts of deemed possession and presumed offender, affects the grant of anticipatory bail.
- Whether confessional statements of co‑accused made in police custody can be relied upon to deny anticipatory bail.
Legislation cited
- Criminal Procedure Code — s. 438(2)
- Excise Act — s. 30(a)
Subjects
- anticipatory bail
- Section 438 CrPC
- Excise Act
- deemed possession
- clean antecedent
- confessional statements
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.33489 of 2026
Arising Out of PS. Case No.-234 Year-2026 Thana- MALSALAMI District- Patna
======================================================
Nitish Kumar S/o Sanjivan Ray @ Sajivan Ray Present Add.- Nurudinganj
Ghat Kinare, P.S.- Malsalami, Distt.- Patna. Permanent Add.- Vill.-
Sukumarpur, P.S.- Raghopur, Distt.- Vaishali
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Mithilesh Kumar Arya
For the Opposite Party/s : Mr/s.Sucheta Yadav
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 14-05-2026 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 is a person with clean antecedent and allegation is
of recovery of 350 litres of liquor from a place near Gareriya
Ghat.
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
Patna High Court CR. MISC. No.33489 of 2026(2) dt.14-05-2026
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and is accessible to public at large and he came to be implicated
based on confessional statement of Manoj and Sunil in police
custody which does not have any evidentiary value. It is also
submitted that after Amendment in the Excise Act, 2018, the
concept of deemed possession and presumed offender has been
done away with.
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.500/- (Rupees Five Hundred) 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
Malsalami P. S. Case No.234 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
Patna High Court CR. MISC. No.33489 of 2026(2) dt.14-05-2026
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found that petitioner has antecedent of even one case, 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 is a person with clean antecedent, in that event, the
provisional anticipatory bail order shall be confirmed forthwith.
(Satyavrat Verma, J)
vikash/-
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