Patna High Court
Rakesh MukhiyaversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- SATYAVRAT VERMA
Holding
The Court granted anticipatory bail to the petitioners subject to conditions under Section 438(2) of the CrPC.
Summary
The petitioners, Rakesh and Deepak Mukhiya, applied for anticipatory bail under Section 438 of the Criminal Procedure Code in connection with a case alleging violation of Section 30(a) of the Excise Act for possession of 15 litres of liquor. They argued that the liquor was found in a joint family house, they had no conscious possession, and the amended Excise Act had abolished the concepts of deemed possession and presumed offender. The State opposed the bail, contending the seriousness of the offence. The Court, after considering the submissions, directed that the petitioners be released on provisional anticipatory bail upon furnishing bail bonds of Rs.500 with two sureties, subject to verification of their criminal antecedents. The order stipulated that if any antecedent is discovered, the bail would not be confirmed; otherwise, it would be confirmed forthwith.
Issues considered
- Whether anticipatory bail can be granted under Section 438 CrPC for an alleged offence under Section 30(a) of the Excise Act.
- Whether the absence of conscious possession and the joint family ownership of the property negate the charge of possession.
- Whether the amendment to the Excise Act, 2018, which removed the concepts of deemed possession and presumed offender, affects the bail application.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 438(2)
Subjects
- anticipatory bail
- Section 438 CrPC
- Excise Act
- deemed possession
- joint family property
- bail conditions
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.9070 of 2026
Arising Out of PS. Case No.-572 Year-2025 Thana- DHAKA District- East Champaran
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1. Rakesh Mukhiya Son of Bhagirath Mukhiya Resident of Village - Badharwa
Siwan, P.S. -Dhaka, District - East Champaran.
2. Deepak Mukhiya Son of Late Dhodai Mukhiya Resident of Village -
Badharwa Siwan, P.S. -Dhaka, District - East Champaran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ajay Kumar Singh
For the Opposite Party/s : Dr. Kumar Uday Pratap
======================================================
CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
3 30-03-2026 1. Heard learned counsel for the petitioner and
learned APP for the State.
2. The petitioner seeks bail in anticipation of his
arrest in a case registered for the offences punishable under
Sections 30(a) of the Excise Act.
3. The learned counsel for the petitioner submits that
the petitioner is a person with clean antecedent and the
allegation is of recovery of 15 litres of liquor from house of the
petitioner apart from other recoveries as alleged in the FIR.
4. It is further submitted that Rakesh Mukhiya,
petitioner no.1 was arrested earlier, as such, the anticipatory bail
application on his behalf was withdrawn by order dated
Patna High Court CR. MISC. No.9070 of 2026(3) dt.30-03-2026
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17.02.2026.
5. The learned counsel for the petitioner submits that
petitioner was not arrested from the spot, as such, nothing was
recovered from his conscious possession and even the house in
question is a joint family property and thus, it cannot be alleged
with certainty that it was the petitioner, who had kept the liquor
in the house or the liquor kept in the house was within his
knowledge and after Amendment in the Excise Act, 2018, the
concept of deemed possession and presumed offender has been
done away with and he came to be implicated based on secret
information, which is the easiest way to implicate someone
without holding a proper investigation.
6. Learned A.P.P. opposes the anticipatory bail
application.
7. Considering the submissions made by the learned
counsel for the petitioner, the petitioner, above-named, in the
event of his arrest or surrender before the learned Court below
within a period of six weeks, is directed to be released on
provisional anticipatory bail on his furnishing bail-bonds in the
sum of Rs.500/- (Rupees Five Hundred) with two sureties of the
like amount each to the satisfaction of the learned Trial Court
where the case is pending/ successor Court in connection with
Patna High Court CR. MISC. No.9070 of 2026(3) dt.30-03-2026
3/3
Dhaka P. S. Case No.572 of 2025, subject to the conditions laid
down under Section 438(2) of the Cr.P.C.
8. The application stands allowed.
9. It is made clear that the learned trial Court after
accepting the provisional bail bonds of the petitioners shall
verify the criminal antecedent of the petitioners and in the event,
if it is found that petitioners have antecedent of even one case,
then it would be presumed that petitioners for the purposes of
obtaining anticipatory bail had concealed their antecedent
before this Court, in that event, the present provisional
anticipatory bail order shall not be confirmed, but if on
verification, it is found that petitioners are persons with clean
antecedent, in that event, the provisional anticipatory bail order
shall be confirmed forthwith.
(Satyavrat Verma, J)
vikash/-
U T
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