Patna High Court
Upendra Rai @ Upendra kumar yadavversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJIV ROY
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
- Bihar Prohibition and Excise Act — s. 30(a), 32, 41(1), 76(2)
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
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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
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(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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