Patna High Court
KANHAIYA @ KANHAIYA KUMAR @ KANHAIYA KUMAR JHAversusTHE STATE OF BIHAR
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJIV ROY
Holding
Anticipatory bail was granted as no conscious possession was established and the Full Bench precedent allows bail despite Section 76(2) where no offence is made out.
Summary
The petitioner, Kanhaiya Kumar, was arrested in connection with a case under section 30(a) of the Bihar Prohibition and Excise Act for allegedly possessing 25.5 litres of country‑made liquor. He contended that nothing was recovered from his conscious possession and that he has no criminal antecedent. Relying on the Full Bench decision in Ram Vinay Yadav v. State of Bihar, he argued that anticipatory bail can be granted despite the bar in section 76(2) if no offence is made out. The court, after considering the submissions and the precedent, held that the prosecution had not established conscious possession and that the petitioner’s clean record warranted relief. Consequently, the court granted anticipatory bail with a set of conditions, reserving the right to cancel the bail if any condition is breached or a criminal antecedent later emerges.
Issues considered
- Whether anticipatory bail can be granted under the Bihar Prohibition and Excise Act despite the bar in section 76(2) when no offence is made out.
- Whether the petitioner’s alleged conduct amounts to conscious possession of illicit liquor.
- Whether the absence of a criminal antecedent influences the grant of anticipatory bail.
Subjects
- anticipatory bail
- Bihar Prohibition and Excise Act
- section 30
- section 76(2)
- conscious possession
- criminal antecedent
- bail conditions
- excise law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.8690 of 2026
Arising Out of PS. Case No.-195 Year-2025 Thana- BARAUNI RAIL P.S. District- Begusarai
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KANHAIYA @ KANHAIYA KUMAR @ KANHAIYA KUMAR JHA S/O
MUKESH KUMAR JHA R/O VILL.- HARPUR, P.O.- HARPUR, WARD
NO. 12, TELAR, P.S.- REFINERY, DIST.- BEGUSARAI.
... ... Petitioner/s
Versus
THE STATE OF BIHAR
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Saket Kumar, Advocate
For the Opposite Party/s : Mr. Mritunjay Kumar Nirala, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 17-02-2026 Heard the parties.
2. The petitioner is apprehending his arrest in
connection with Rail (Barauni) P.S. Case No. 195 of 2025 for
the offence under section 30(a) of the Bihar Prohibition and
Excise Act.
3. As per the prosecution story, during the night
patrolling, two persons were found moving on the railway track
with bags. Upon interception, one managed to escape while
Kanhaiya Kumar was apprehended and there is recovery of
altogether 25.50 liters of country made liquor. This led to the
FIR.
4. Learned counsel for the petitioner submits that
nothing has been recovered from his conscious possession,
Patna High Court CR. MISC. No.8690 of 2026(2) dt.17-02-2026
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Kanhiya Kumar has named him and he do not have any criminal
antecedent.
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
Kanhiya Kumar has named him.
7. Taking into account the submissions 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 nor he has any criminal antecedent, in that
background, this Court is inclined to extend him the privilege of
anticipatory bail with conditions.
8. If, however, it is found that contrary to the
statement made in paragraph-3, the petitioner has criminal
antecedent, the present order shall become infructuous.
Patna High Court CR. MISC. No.8690 of 2026(2) dt.17-02-2026
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9. Let the petitioner be released on bail in the event of
arrest or surrender within a period of four weeks from the
receipt of this order, on furnishing bail bond of Rs. 10,000/-
(Ten thousand) with two sureties of like amount each to the
satisfaction of learned Exclusive Special Judge (Excise) – II,
Begusarai in connection with Rail (Barauni) P.S. Case No. 195
of 2025 subject to the following conditions:
(i) one of the bailor should be the family
member/relative of the petitioner who shall provide official
document 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 fortnight for six months to mark his
attendance and after the end of the period, the certificate shall be
submitted before the Trial Court failing which steps shall be
taken for the cancellation of the bail bonds;
Patna High Court CR. MISC. No.8690 of 2026(2) dt.17-02-2026
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(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)
Adnan/-
U T
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