Patna High Court
Nikesh KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJESH KUMAR VERMA
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
- Bihar Prohibition and Excise Act — s. 30(a), 32, 33, 34, 36, 41, 76(2)
- BNSS, 2023 — s. 100, 103, 482(2)
- Code of Criminal Procedure — s. 438(2)
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
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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
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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/-
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