Patna High Court
Nunu Paswan @ Mahesh Paswan @ Kallu PaswanversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJIV ROY
Holding
The Court granted anticipatory bail to the petitioner, holding that no offence was made out and the Section 76(2) bar does not preclude the relief.
Summary
The petitioner, Nunu Paswan, was implicated in a case under Section 30(a) of the Bihar Prohibition and Excise Amendment Act, 2022 after 30 litres of country-made liquor were seized from an open area near fire‑wood, with no evidence of his conscious possession. He applied for anticipatory bail, arguing that the seizure did not constitute an offence and that the bar under Section 76(2) of the Act should not apply. The State opposed, contending that the petitioner was involved in the investigation. Relying on the Full Bench decision in Ram Vinay Yadav v. State of Bihar, which allows anticipatory bail where no offence is made out despite the Section 76(2) bar, the Court held that the petitioner was not in possession of the liquor and thus granted anticipatory bail with strict conditions. The order directed the petitioner to furnish a bail bond of Rs.10,000 with two sureties and comply with various reporting and conduct requirements under Section 438(2) of the Cr.P.C.
Issues considered
- Whether seizure of liquor from an open place, without conscious possession, amounts to an offence under Section 30(a) of the Bihar Prohibition and Excise Amendment Act, 2022.
- Whether the bar under Section 76(2) of the Bihar Prohibition and Excise Amendment Act, 2022 precludes the filing of an anticipatory bail application.
- Whether anticipatory bail can be granted under Section 438 of the Criminal Procedure Code in the present facts.
Legislation cited
- Bihar Prohibition and Excise (Amendment) Act, 2022 — s. 30(a), 76(2)
- Criminal Procedure Code — s. 438(2)
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Amendment Act
- Section 30
- Section 76(2)
- Section 438 CrPC
- seizure
- conscious possession
- criminal antecedent
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.43925 of 2026
Arising Out of PS. Case No.-172 Year-2026 Thana- RAJAPAKAR District- Vaishali
======================================================
Nunu Paswan @ Mahesh Paswan @ Kallu Paswan Son of Sarikhan Paswan
Resident of Village- Rampur Dilawar, Ward No. 10 Baikunthpur, P.S.-
Rajapakar, District- Vaishali, Bihar
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mrs. Rupa Kumari, Advocate
For the Opposite Party/s : Mr. Suresh Prasad Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 08-07-2026 Heard Mrs. Rupa Kumari, learned counsel for the
petitioner and learned counsel representing the State.
2. The petitioner is apprehending arrest in connection
with Rajapakar P.S. Case No. 172 of 2026 instituted under
Section 30(a) of the Bihar Prohibition and Excise Amendment
Act 2022 lodged on 05.04.2026 by the informant, Gauri
Shankar.
3. As per the prosecution story, the informant alleged
that on secret information, the place was raided and near the
fire-wood, there is recovery/seizure of 30 liters of country made
liquor, This led to the FIR.
4. Learned counsel for the petitioner submits that
from perusal of the FIR would show that recovery/seizure is
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from an open place not from his conscious possession and only
because of criminal antecedent, got implicated.
5. Further, learned counsel for the petitioner relied on
the judgment of the Full Bench of Hon’ble Patna High Court in
the case of Ram Vinay Yadav vs. State of Bihar reported in
2019 (2) PLJR 1089 wherein it has been held that an
application for anticipatory bail in a case arising out of Bihar
Excise and Prohibition Act can be maintained, despite the bar
under Section 76(2) of the Act, if on the basis of allegation
made in the FIR, no offence under the said provision is made
out.
6. Learned APP, opposes the prayer submitting that
his role has come in the investigation.
7. Taking into account the submissions aforesaid as
also that recovery/seizure is from an open place, of the parties
and the judgment in the case of Ram Vinay Yadav (supra), as
also that nothing has been recovered from his conscious
possession or from the house, in that background this Court is
inclined to extend him the privilege of anticipatory bail.
8. Let the petitioner be released on bail, in the event
of his arrest or surrender before the concerned court within a
period of four weeks from the receipt of this order, on furnishing
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bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of
the like amount each in connection with Rajapakar P.S. Case
No. 172 of 2026 to the satisfaction of Exclusive Special Judge,
Excise court no.2 cum District and Additional Sessions Judge,
Hajipur, Vaishali subject to the conditions as laid down under
Section 438(2) of the Cr.P.C. as also the other conditions.
(i) one of the bailor should be the family
member/relative of the petitioner who shall provide official
document (Aadhar Card/Driving License/Voter ID/Pan Card
etc.) to show his/her bona fide;
(ii) the petitioner shall be appearing before the police
station as and when required for cooperating in the
investigation;
(iii) the petitioner shall appear on each and every date
before the Trial Court and failure to do so for two consecutive
dates without plausible reason will entail cancellation of his
bail bond by the Trial Court itself;
(iv) the petitioner shall appear before the concerned
police station every day for one month and later every fortnight
for next six months to mark his attendance and at the end of the
period a certificate be submitted before the Trial Court failing
which the State shall be at liberty to take steps for cancellation
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of bail bonds;
(v) the petitioner shall in no way try to induce or
promise or threat the witnesses or tamper with the evidences,
failing which the State shall be at liberty to take steps for
cancellation of the bail bonds;
(vi) the petitioner shall desist from committing any
criminal offence again, failing which the State shall be at liberty
to take steps for cancellation of his bail bonds.
(Rajiv Roy, J)
Ravi/-Ankita
U T
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