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Patna High Court

Upendra Rai @ Upendra kumar yadavversusThe State of Bihar

Decided
Disposal
BAIL GRANTED

Holding

The court held that anticipatory bail may be granted as no material evidence shows the petitioner’s conscious possession, rendering the bar under Section 76(2) inapplicable.

Summary

The petitioner, Upendra Rai, sought anticipatory bail fearing arrest in Parsa P.S. Case No. 97 of 2026 under sections 30(a), 41(1) and 32 of the Bihar Prohibition and Excise Act after a seizure of 960 litres of spirit. The prosecution’s case was based on the arrest of a driver, Bhawani Shankar, and the statement of another arrested individual, Lal Sah, who identified the petitioner. The petitioner contended that he neither owned nor drove the vehicle and that no spirit was recovered from his conscious possession. Relying on the Patna High Court’s decision in Ram Vinay Yadav v. State of Bihar, which allows anticipatory bail despite the bar under Section 76(2) when no offence is established, the court examined the material facts. Finding no evidence of the petitioner’s possession and considering the cited precedent, the court granted anticipatory bail with a set of strict conditions, including bond, sureties, regular appearances before police and court, and non‑interference with witnesses.

Issues considered

  • Can anticipatory bail be granted under the Bihar Prohibition and Excise Act despite the bar in Section 76(2) when the alleged offender’s conscious possession is not established?
  • Whether the petitioner can be held liable under sections 30(a), 41(1) and 32 of the Bihar Prohibition and Excise Act based solely on the FIR naming him.
  • Whether the statement of an arrested co‑accused is sufficient ground for the petitioner’s arrest.

Legislation cited

Subjects

  • anticipatory bail
  • Bihar Prohibition and Excise Act
  • seizure of liquor
  • conscious possession
  • Section 76(2) bar
  • bail conditions

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.35460 of 2026
                          Arising Out of PS. Case No.-97 Year-2026 Thana- PARSA District- Saran
                 ======================================================
                 Upendra Rai @ Upendra kumar yadav Son of Jamadar Rai Resident of
                 Village- Chanchaliya, P.S.- Tariya, District- Saran.

                                                                                    ... ... Petitioner/s
                                                        Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :        Mr. Alok Kumar Alok, Advocate
                 For the Opposite Party/s :        Mr. Choubey Jawahar, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
                                       ORAL ORDER

2   21-05-2026                  Heard the parties through virtual mode.

                                2. The petitioner is apprehending his arrest in

                   connection with Parsa P.S. Case No. 97 of 2026 for the offence

                   under sections 30(a), 41(1) and 32 of the Bihar Prohibition and

                   Excise Act.

                                3. As per the prosecution story, a force traveler was

                   intercepted and there is recovery/seizure of 960 liters of spirit. One

                   Bhawani Shankar who was driving the vehicle was arrested.

                   Subsequently, one Lal Sah was arrested and he gave the name of

                   this petitioner. This led to the FIR.

                                4. Learned counsel for the petitioner submits that

                   neither he owns the vehicle nor he is a driver. Further, it was

                   driven by Bhawani Shankar from whose conscious possession, the

                   spirit was recovered/seized.

                                5. Further, learned counsel for the petitioner relied on
Patna High Court CR. MISC. No.35460 of 2026(2) dt.21-05-2026
                                            2/3




          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

          arrested persons, Lal Sah, gave the name of the petitioner.

                       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, 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

          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 the Court concerned in connection with Parsa P.S. Case No. 97

          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;
          Patna High Court CR. MISC. No.35460 of 2026(2) dt.21-05-2026
                                                      3/3




                                 (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

                    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)
Adnan/-

U     T


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