Patna High Court
Mahesh Mistri @ Mahesh SharmaversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- CHANDRA SHEKHAR JHA
Holding
Anticipatory bail was granted as the seizure did not establish conscious possession by the petitioners.
Summary
Mahesh Mistri and his son Sunil Kumar were named in an FIR for alleged illegal manufacture and trade of illicit liquor under Section 30(a) of the Bihar Prohibition and Excise Amendment Act, 2022, with 15.125 litres of liquor seized. The petitioners contended that the liquor was recovered from their open cowshed, they were not present at the time of seizure, and no independent witness corroborated the police’s claim of possession, asserting they had clean antecedents. The State opposed anticipatory bail, arguing the seizure indicated involvement in the offence. The court examined whether the facts established a prima facie case of possession sufficient to deny bail and considered the applicability of Section 438(2) CrPC and Section 482(2) of the BNSS. Finding that the recovery did not clearly demonstrate the petitioners’ conscious possession, the court granted anticipatory bail subject to bond and surety conditions. The petitioners were ordered to surrender within four weeks and to comply with bail conditions.
Issues considered
- Whether the petitioners are entitled to anticipatory bail under Section 438(2) of the CrPC in a case of alleged illicit liquor manufacture under Section 30(a) of the Bihar Prohibition and Excise Amendment Act, 2022.
- Whether the seizure of liquor from the petitioners' cowshed establishes a prima facie case of possession sufficient to deny bail.
Legislation cited
- Bihar Non-Statutory (BNSS) provisions — s. 482(2)
- Bihar Prohibition and Excise (Amendment) Act, 2022 — s. 30(a)
- Criminal Procedure Code — s. 438(2)
Subjects
- anticipatory bail
- illegal liquor
- possession
- Section 30(a)
- Bihar Prohibition and Excise Act
- CrPC Section 438
- bail jurisprudence
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.43433 of 2026
Arising Out of PS. Case No.-118 Year-2026 Thana- BODHGAYA District- Gaya
======================================================
1. Mahesh Mistri @ Mahesh Sharma S/o Late Muneshwar Mistry R/o Village-
Pachhatti, PS- Bodh Gaya, Dist- Gaya
2. Sunil Kumar S/o Mahesh Mistri @ Mahesh Sharma R/o Village- Pachhatti,
PS- Bodh Gaya, Dist- Gaya
... ... Petitioners
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioners : Mr.Vijay Kumar, Advocate
For the Opposite Party : Mr.Madan Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
2 03-07-2026 Heard learned counsel for the petitioners and
learned Additional Public Prosecutor for the State.
2. Both accused/petitioners are named in the FIR
and apprehending their arrest in connection with Bodhgaya
P.S. Case No.118 of 2026 registered under Section 30(a) of
Bihar Prohibition and Excise Amendment Act, 2022.
3. Allegation against the petitioners is to engage in
illegal trade/manufacturing of illicit liquor, where there is
recovery of 15.125 litres of IMFL/country-made liquor.
4. It is submitted by learned counsel appearing for
the petitioners that the recovery of alleged illicit liquor was
Patna High Court CR. MISC. No.43433 of 2026(2) dt.03-07-2026
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made from the cowshed of petitioners. It is also submitted
that the cowshed of the petitioner is an open place
accessible to general public. It is further submitted that
name of these petitioners arrayed solely for the reason that
cowshed belongs to petitioners. It is further argued that
petitioners were not present at the spot when the alleged
liquor was seized and it can be safely said that recovery of
illicit liquor was not made from conscious possession of these
petitioners. It is argued that no independent witness was
associated with the search and seizure list and the seizure
witnesses were police personnel themselves. Petitioners
claim clean antecedent.
5. Learned APP opposed the prayer of anticipatory
bail to the petitioners.
6. In view of aforesaid factual submissions and by
taking note of the fact as recovery of illicit liquor prima facie
not appears to be made from physical possession of these
petitioners, who are man of clean antecedent, accordingly,
both petitioners, above-named, in the event of their arrest or
surrender in the court below within a period of four weeks
Patna High Court CR. MISC. No.43433 of 2026(2) dt.03-07-2026
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from today, are directed to be released on bail on furnishing
bail bond of Rs.10,000/- (Rupees Ten Thousand) each with
two sureties of the like amount each to the satisfaction of
learned Exclusive Special Excise, Court No. 1, Gaya Jee, in
connection with Bodhgaya P.S. Case No.118 of 2026,
subject to the conditions as laid down under Section 438(2)
of the CrPC/under Section 482(2) of the BNSS.
(Chandra Shekhar Jha, J.)
Aniket/-
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