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Patna High Court

Nikesh KumarversusThe State of Bihar

Decided
Disposal
BAIL GRANTED

Holding

The Court held that anticipatory bail should be granted to the petitioner, subject to conditions, as the allegations lacked substantive evidence and procedural requirements were not met.

Summary

The petitioner, Nikesh Kumar, sought anticipatory bail after his name was implicated in a FIR for alleged violations of the Bihar Prohibition and Excise Act involving the seizure of 2,550.125 liters of liquor. He argued that he had a clean antecedent, no liquor was found in his conscious possession, and the only link to him was a co‑accused’s disclosure. The State opposed bail, invoking Section 76(2) of the Act and contending that pre‑arrest bail was not permissible. The Court noted non‑compliance with mandatory recovery procedures under Section 100 of the CrPC/Section 103 of BNSS, 2023, and relied on the Full Bench decision in Ram Vinay Yadav v. State of Bihar. Applying the principles from that precedent, the Court granted anticipatory bail subject to strict conditions, including a bail bond and sureties. The order also imposed obligations on the petitioner to cooperate with the trial and warned of bail cancellation for non‑compliance or concealment of antecedents.

Issues considered

  • Whether anticipatory bail can be granted under Section 438 CrPC despite the provisions of Section 76(2) of the Bihar Prohibition and Excise Act.
  • Whether the procedural lapse in recovery under Section 100 CrPC/Section 103 BNSS, 2023, defeats the case against the petitioner.
  • Whether a co‑accused’s statement alone suffices to sustain an arrest or bail denial.

Legislation cited

Subjects

  • anticipatory bail
  • Bihar Prohibition and Excise Act
  • procedural lapse
  • co‑accused testimony
  • clean antecedent
  • bail conditions

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                               CRIMINAL MISCELLANEOUS No.38041 of 2026
                          Arising Out of PS. Case No.-56 Year-2026 Thana- SARAI District- Vaishali
                 ======================================================
                 Nikesh Kumar Son of Dasharath Singh Resident of Village- Subhai Chauk
                 Patedha/ Jahangirpur Patera, P.S.- Sarai, District- Vaishali at Hajipur.

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

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :         Mr.Hemant Kumar, Advocate
                 For the Opposite Party/s :         Mr.Braj Kishore Pd., APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
                                       ORAL ORDER

2   02-07-2026                   Heard Mr.Hemant Kumar, learned counsel for the

                   petitioner and Mr.Braj Kishore Pd., learned Additional Public

                   Prosecutor for the State.

                                 2. The petitioner is apprehending his arrest in

                   connection with Sarai P.S.Case No.56 of 2026,FIR dated

                   26.02.2026 registered for the offences punishable under

                   Sections 30(a),32,33,34,36,41 of Bihar Prohibition and Excise

                   Act.

                                 3. Recovery is of 2550.125 liters of Indian made

                   foreign liquor.

                                 4. Learned counsel for the petitioner submits that the

                   petitioner has clean antecedent. From a bare perusal of the FIR

                   as well as the seizure list it appears that altogether 2550.125

                   liters of Indian made foreign liquor was recovered from the
Patna High Court CR. MISC. No.38041 of 2026(2) dt.02-07-2026
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          place of occurrence. Name of the petitioner has been transpired

          during investigation on the basis of the disclosure made by the

          apprehended co-accused person, namely, Vicky Kumar. It

          appears from the FIR as well as the seizure list that nothing has

          been recovered from conscious possession of the petitioner and

          except the confessional statement of co-accused person, nothing

          has come during investigation against the petitioner to suggest

          the involvement of the petitioner in the present occurrence.

          There is non-compliance with mandatory procedure prescribed

          for recovery under Section 100 of Cr.P.C./Section 103 of BNSS,

          2023. No case, whatsoever, would be made out against the

          petitioner under the Bihar Prohibition and Excise Act.

                       5. Learned A.P.P. for the State has vehemently

          opposed the prayer for bail of the petitioner referring the

          provision contained in Section 76(2) of the Bihar Prohibition

          and Excise Act and submitted that the pre-arrest bail would not

          be maintainable.

                       6. This Court is aware of the decision of the Full

          Bench in the case of Ram Vinay Yadav Vs. State of Bihar

          reported in 2019 (2) PLJR 1089. Having regard to the law laid

          down in the aforesaid judgment and the submission advanced on

          behalf of the parties, this Court for the limited purpose of grant
Patna High Court CR. MISC. No.38041 of 2026(2) dt.02-07-2026
                                            3/4




          of anticipatory bail, is inclined to accept the submission of

          Counsel for the petitioner.

                       7. Considering the aforesaid facts, petitioner has clean

          antecedent, nothing has been recovered from conscious

          possession of the petitioner and name of the petitioner has been

          transpired during investigation on the basis of the disclosure

          made by apprehended co-accused person, let the petitioner,

          above named, in the event of his arrest or surrender before the

          court below within a period of thirty days from the date of

          receipt of the order, be released on bail on furnishing bail bond

          of Rs.10,000 (Ten Thousand) with two sureties of the like

          amount each to the satisfaction of learned Exclusive Special

          Prohibition and Excise Court(II)-cum-District and Additional

          Sessions Court Judge, Hajipur, Vaishali in connection with Sarai

          P.S.Case No.56 of 2026, subject to the conditions as laid down

          under Section 438(2) of the Code of Criminal Procedure/

          Section 482(2) of BNSS, 2023 and with other following

          conditions:-

                       (I) Petitioner shall co-operate in the trial and shall be

          properly represented on each and every date fixed by the Court

          and shall remain physically present as directed by the Court and

          on his/her absence on two consecutive dates without sufficient
               Patna High Court CR. MISC. No.38041 of 2026(2) dt.02-07-2026
                                                           4/4




                         reason, his/her bail bond shall be cancelled by the Court below.

                                      (II) If the petitioner tampers with the evidence or the

                         witnesses, in that case, the prosecution will be at liberty to move

                         for cancellation of bail.

                                      (III) And, further condition that the court below shall

                         verify the criminal antecedent of the petitioner and in case at

                         any stage, it is found that the petitioner has concealed his/her

                         criminal antecedent, the court below shall take step for

                         cancellation of bail bond of the petitioner. However, the

                         acceptance of bail bonds in terms of the above-mentioned order

                         shall not be delayed for purpose of or in the name of

                         verification.



                                                (Rajesh Kumar Verma, J)
Nitesh/-

U          T


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