The Patna High Court has clarified that provisional anticipatory bail in cases under the Bihar Excise Act is conditional upon the petitioner’s truthful disclosure of criminal antecedents. The judgment underscores that concealment of prior cases, even if minor, invalidates bail and reinforces judicial scrutiny of custodial confessions as evidentiary bases for arrest.
Background & Facts
The Dispute
The petitioners, Anuj Kumar and Raja Kumar, both residents of Hindu Chakia, East Champaran, apprehend arrest in connection with PS Case No. 92 of 2026, registered under Section 30(a) of the Bihar Excise Act. The case arises from the recovery of 294.52 litres of country liquor from a hut located near the residence of one Niraj, who is not one of the petitioners. The petitioners assert they had no connection to the hut, no liquor in their possession, and were not present at the time of recovery.
Key Facts
- The alleged recovery occurred on or about 15.04.2026
- The liquor was recovered from a hut not owned or occupied by either petitioner
- The sole basis for implicating the petitioners is a confessional statement allegedly made by Niraj while in police custody
- The petitioners have no prior criminal record, as per their submission
- The impugned order incorrectly recorded at para 5 that the petitioners had one prior case, which they contest as false
- The Bihar Excise Act was amended in 2018, removing the doctrines of "deemed possession" and "presumed offender"
Procedural History
- 15.04.2026: FIR registered at Chakia Police Station under Section 30(a) of the Bihar Excise Act
- 05.05.2026: Petitioners filed this criminal miscellaneous petition seeking anticipatory bail
- 06.05.2026: Hearing before the Hon’ble Justice Satya Vrat Verma
The Parties' Positions
For the Petitioners:
- Argue that no contraband was recovered from their person or premises
- Contend that the confessional statement of Niraj, made in police custody, is inadmissible under Section 25 of the Indian Evidence Act
- Emphasize that the 2018 amendment to the Bihar Excise Act abolished the legal fiction of deemed possession, making arrest without direct evidence unlawful
- Assert that their clean antecedents are corroborated by public records and that the reference to a prior case in the order is erroneous
For the Respondent/State:
- Oppose anticipatory bail, arguing that the quantity of liquor recovered (nearly 300 litres) indicates large-scale illicit activity
- Maintain that the petitioners’ proximity to the recovery site and association with Niraj justify suspicion
- Do not dispute the absence of direct recovery from petitioners but rely on circumstantial linkage
Relief Sought
The petitioners seek anticipatory bail under Section 438 of the Code of Criminal Procedure, or alternatively under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), to prevent arbitrary arrest pending investigation.
The Legal Issue
The central question was whether a court may grant provisional anticipatory bail in a case under the Bihar Excise Act where the sole evidence is a custodial confession, and whether such bail can be made conditional upon verification of the petitioner’s criminal antecedents.
Arguments Presented
For the Petitioner
The petitioners relied on Arnesh Kumar v. State of Bihar to argue that arrest cannot be automatic merely because a quantity of contraband is recovered near a person’s vicinity. They emphasized that the 2018 amendment to the Bihar Excise Act removed the presumption of guilt based on proximity or possession by others. They further cited State of U.P. v. Anil Kumar to assert that custodial confessions have no evidentiary value and cannot form the basis for arrest or prosecution. Their clean antecedents, they argued, were a strong factor in favor of bail.
For the Respondent
The State contended that the large quantity of liquor recovered (294.52 litres) suggests organized smuggling, and proximity to the recovery site, even without direct possession, warrants investigation. They argued that the petitioners’ failure to come forward voluntarily indicated guilt. No specific precedent was cited to counter the petitioners’ arguments on custodial confessions or the 2018 amendment.
The Court's Analysis
The Court acknowledged the absence of direct recovery from the petitioners and noted that the sole incriminating material was the statement of Niraj, made in police custody. The Court observed that under Section 25 of the Indian Evidence Act, such statements are inadmissible as evidence against any person other than the maker. The Court further noted that the 2018 amendment to the Bihar Excise Act explicitly repealed the provisions that allowed for "deemed possession" and "presumed offender" status, thereby requiring direct evidence of involvement.
"The recovery from a hut not belonging to the petitioners, coupled with a custodial confession of a third party, cannot, by itself, constitute sufficient grounds for arrest without further corroboration."
The Court also addressed the erroneous recording in the impugned order that the petitioners had a prior case. The Court held that while the petitioners’ clean antecedents weighed in their favor, the integrity of the judicial process required verification of this claim. The Court emphasized that concealment of prior criminal history, even if unintentional, undermines the court’s ability to assess risk and must be treated as a material misrepresentation.
The Court concluded that the balance of convenience and the principle of personal liberty favored granting provisional bail, but only under strict conditions to ensure accountability and truthfulness.
The Verdict
The petitioners were granted provisional anticipatory bail. In the event of arrest or surrender within six weeks from 06.05.2026, they shall be released on furnishing bail bonds of Rs. 500 each with two sureties of the like amount, to the satisfaction of the trial court handling PS Case No. 92 of 2026. The provisional bail shall be confirmed only if the trial court verifies that the petitioners have no prior criminal record. If any petitioner is found to have concealed even one prior case, the provisional bail shall stand revoked automatically. The order shall be confirmed forthwith if antecedents are clean.
What This Means For Similar Cases
Custodial Confessions Cannot Sustain Arrest
- Practitioners must challenge arrests based solely on custodial confessions under Section 25 of the Indian Evidence Act
- In Bihar Excise Act cases post-2018, the prosecution must prove direct possession or active participation, not mere proximity
- Any reliance on "deemed possession" or "presumed offender" doctrines is legally untenable
Anticipatory Bail Requires Full Disclosure
- Petitioners must disclose all prior cases, even those acquitted or compoundable
- Concealment, whether intentional or inadvertent, renders provisional bail liable to automatic revocation
- Courts may now routinely direct trial courts to verify antecedents before confirming anticipatory bail
- This creates a two-stage verification process: provisional grant followed by conditional confirmation
Judicial Scrutiny of Police Evidence
- Recovery from third-party premises requires independent corroboration
- Courts will not accept circumstantial links without concrete evidence of involvement
- Lawyers should file applications under Section 482 BNSS to quash FIRs where the only evidence is a custodial confession
