Patna High Court
Vikash KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJIV ROY
Holding
Anticipatory bail was granted as the recovery was not from the petitioners' conscious possession and no offence under the Bihar Prohibition and Excise Act was established.
Summary
The petitioners Vikash Kumar, Vicky Rai and Pradip Paswan sought anticipatory bail under Section 438 of the Cr.P.C. after a police raid recovered 19 litres of country‑made liquor from an open area behind a banana plantation, which they claimed was not in their conscious possession. The FIR was lodged under Section 30(a) of the Bihar Prohibition and Excise Act. The petitioners relied on the Patna High Court Full Bench decision in Ram Vinay Yadav v. State of Bihar, which allows anticipatory bail despite the bar in Section 76(2) if the alleged facts do not constitute an offence. The State opposed, citing the petitioners’ criminal antecedents. The Court, after considering the submissions and the precedent, held that no offence was made out and granted anticipatory bail with a bond of Rs 10,000 and several conditions, including regular court appearances and non‑interference with witnesses. The order directed that bail be released if the petitioners are arrested or surrender within four weeks.
Issues considered
- Whether anticipatory bail can be granted under Section 438 Cr.P.C. in a case under the Bihar Prohibition and Excise Act when the seized liquor was not in the petitioners' conscious possession.
- Whether the bar under Section 76(2) of the Bihar Prohibition and Excise Act precludes an anticipatory bail application.
Legislation cited
- Bihar Prohibition and Excise Act — s. 30(a), 76(2)
- Criminal Procedure Code — s. 438(2)
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Act
- Section 30
- Section 76(2)
- Criminal Procedure Code
- seizure
- conscious possession
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.34975 of 2026
Arising Out of PS. Case No.-102 Year-2026 Thana- GORAUL District- Vaishali
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1. Vikash Kumar S/o Mrityunjay Roy R/o village - Karhatiya Buzurg, P.S -
(Kathara), Goraul, District - Vaishali
2. Vicky Rai @ Vicky Kumar S/o Sanjay Rai R/o village - Karhatiya Buzurg,
P.S - (Kathara), Goraul, District - Vaishali
3. Pradip Paswan @ Pradip Kumar S/o Ram Bilas Paswan R/o village -
Karhatiya Buzurg, P.S - (Kathara), Goraul, District - Vaishali
... ... Petitioner/s
Versus
The State of Bihar Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Hemant Kumar, Advocae
For the Opposite Party/s : Mr.Manoj Kumar
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 20-05-2026 Heard the parties.
2. The petitioners are apprehending arrest in
connection with Garaul (Kathara) P.S. Case No. 102 of 2026
instituted under Sections 30(a) of the Bihar Prohibition and
Excise Act lodged on 22.02.2026 by the informant, Pintu
Kumar.
3. As per the prosecution story, the police on secret
information, raided the place behind the Banana plantation of
Vikash Kumar and there is recovery/seizure of 19 liters of
country made liquor. ‘Chowkidar’ named them. This led to the
FIR.
Patna High Court CR. MISC. No.34975 of 2026(2) dt.20-05-2026
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4. Learned counsel for the petitioners submit that a
perusal of the FIR would show that the recovery/seizure is from
an open place and not from their conscious possession.
5. Further, learned counsel for the petitioners 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 of 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
both the petitioners have criminal antecedent.
7. Taking into account the submissions of the parties
and the judgment of Ram Vinay Yadav (supra), as also that the
recovery is from the Banana plantation and not from their
conscious possession, in that background, this Court is inclined
to extend them the privilege of anticipatory bail.
8. Let the petitioners be released on bail, in the event
of his arrest or surrender before the concerned court within a
period of four weeks from the receipt of this order, on furnishing
bail bond of Rs. 10,000/- (Ten Thousand) each with two
Patna High Court CR. MISC. No.34975 of 2026(2) dt.20-05-2026
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sureties of the like amount each in connection with / Garaul
(Kathara) P.S. Case No. 102 of 2026 to the satisfaction of
learned Excl. Spl. Excise Court No.1 cum District and
Additional Sessions Judge, Vaishali at Hajipur subject to the
conditions as laid down under Section 438(2) of the Cr.P.C. as
also the other conditions.
(i) one of the bailor should be the family
member/relative of the petitioners who shall provide official
document to show his/her bona fide;
(ii) the petitioners 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 their
bail bond by the Trial Court itself;
(iii) the petitioners shall appear before the concerned
police station every month for next six months to mark their
attendance and at the end of the period a certificate be submitted
before the Trial Court failing which the State shall be at liberty
to take steps for cancellation of bail bonds;
(iv) the petitioners shall in no way try to induce or
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;
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(v) the petitioners shall desist from committing any
criminal offence again, failing which the State shall be at liberty
to take steps for cancellation of their bail bonds.
(Rajiv Roy, J)
Ravi/S.Prasad
U T
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