Patna High Court
Mukesh Kumar Paswan @ Jamura @ Arvind PaswanversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJESH KUMAR VERMA
Holding
The court granted anticipatory bail to the petitioner, subject to conditions, despite the provisions of Section 76(2) of the Bihar Prohibition and Excise Act.
Summary
Mukesh Kumar Paswan sought anticipatory bail in an excise case where 120 litres of liquor were seized from a scooty, not from his conscious possession. He was implicated solely on the basis of a co‑accused's statement that Paswan was present at the scene and later fled. The prosecution opposed bail, invoking Section 76(2) of the Bihar Prohibition and Excise Act, arguing that pre‑arrest bail is not permissible and citing the petitioner’s prior criminal antecedents. The court, relying on the Full Bench judgment in Ram Vinay Yadav v. State of Bihar, held that the lack of possession and the sole reliance on co‑accused testimony warranted anticipatory bail. Accordingly, the court granted anticipatory bail with a Rs 10,000 bond, two sureties, and conditions under Section 438(2) of the CrPC, including cooperation with the trial and non‑tampering with evidence.
Issues considered
- Whether anticipatory bail can be granted in an excise offence where the accused has no direct possession of the seized liquor.
- Whether Section 76(2) of the Bihar Prohibition and Excise Act bars the grant of anticipatory bail.
- Whether the petitioner’s prior criminal antecedents preclude the grant of anticipatory bail.
Legislation cited
- Bihar Prohibition and Excise Act — s. 30(a), 41, 76(2)
- Code of Criminal Procedure — s. 438(2)
Subjects
- anticipatory bail
- excise offence
- possession
- co‑accused testimony
- Section 438 CrPC
- Bihar Prohibition and Excise Act
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.41274 of 2026
Arising Out of PS. Case No.-222 Year-2026 Thana- Excise P.S. District- Nawada
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Mukesh Kumar Paswan @ Jamura @ Arvind Paswan S/o Binda Paswan
Resident of Village- Bhalua, P.S.- Roh, District- Nawada
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sheo Kumar Prasad
For the Opposite Party/s : Mr. Sanjay Kumar Pandey
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
2 02-07-2026 Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the State.
2. The petitioner is apprehending his arrest in
connection with Excise P.S. Case No. 222 of 2026 registered for
the offences punishable under Sections 30(a) and 41 of Bihar
Prohibition and Excise Act.
3. Recovery is of 120 liters of liquor.
4. Learned counsel for the petitioner submits that the
petitioner has falsely been implicated in the present case. He
further submits that it appears from the F.I.R and seizure list that
nothing has been recovered from the conscious possession of
the petitioner rather the recovery has been made from the scooty
in question. It is next submitted that petitioner has been made an
accused in the present merely on the basis of disclosure made by
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apprehended co-accused person, namely, Mithilesh Kumar who
has disclosed that petitioner was present at the place of
occurrence but thereafter fled away. It is next submitted that
except the aforesaid nothing has come during the investigation
to suggest the involvement of the petitioner in the present
occurrence.
5. The learned Additional Public Prosecutor has
vehemently opposed the prayer for anticipatory 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. Apart from that
petitioner has antecedent of two cases other than the present
case but fairly submits that petitioner is on bail in the pending
matters.
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) P.L.J.R. 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
of anticipatory bail, is inclined to accept the submission of
counsel for the petitioner.
7. Considering the aforesaid facts, nothing has been
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recovered from conscious possession of the petitioner and the
petitioner has been made an accused in the present merely on
the basis of 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 the learned
A.C.J.M.-I, Darbhanga in connection with Excise P.S. Case No.
222 of 2026, subject to the conditions as laid down under
Section 438(2) of the Code of Criminal Procedure and with
other following conditions:-
1. 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 absence on two consecutive dates without sufficient
reason, his bail bond shall be cancelled by the Court below.
2. 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.
3. And further condition that the court below shall
verify the criminal antecedent of the petitioner and in case at
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any stage it is found that the petitioner has concealed his
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)
Gaurav Sinha/-
U T
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