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Patna High Court

Mukesh Kumar Paswan @ Jamura @ Arvind PaswanversusThe State of Bihar

Decided
Disposal
BAIL GRANTED

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

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
                 ======================================================
                 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
Patna High Court CR. MISC. No.41274 of 2026(2) dt.02-07-2026
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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
Patna High Court CR. MISC. No.41274 of 2026(2) dt.02-07-2026
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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
           Patna High Court CR. MISC. No.41274 of 2026(2) dt.02-07-2026
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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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