The Patna High Court has clarified that the 2018 amendments to the Bihar Prohibition and Excise Act abolished the doctrines of deemed possession and presumed offender, significantly narrowing the scope of criminal liability in liquor recovery cases. In granting provisional anticipatory bail, the Court emphasized that mere proximity to contraband in a shared household, without direct evidence of knowledge or control, cannot sustain prosecution under the amended statute.
Background & Facts
The Dispute
The petitioner, Akhilesh Rai @ Akhilesh Kumar Rai, is sought to be implicated in Sarairanjan P.S. Case No. 39/2026 for an offence under Section 30(a) of the Bihar Prohibition and Excise (Amendment) Act, 2022. The case arises from the recovery of 17 litres of liquor from a residential property owned by Vikash, the petitioner’s nephew. No liquor was recovered from the petitioner’s person or immediate possession. The prosecution relies solely on a confessional statement made by Vikash while in police custody, which the petitioner contends is inadmissible and lacks corroborative evidence.
Key Facts
- The alleged offence occurred in a joint family property located in Ward No. 03, Sarairanjan, District Samastipur, Bihar
- 17 litres of liquor were recovered from the house on an unspecified date prior to the FIR
- The petitioner was not present at the time of recovery
- No contraband was found on the petitioner’s person or in his personal belongings
- The house is a shared ancestral property occupied by multiple family members
- The prosecution’s case hinges on Vikash’s custodial confession, which is not admissible as evidence under Section 25 of the Indian Evidence Act
- The petitioner has no prior criminal record
Procedural History
- Date of Recovery: Unspecified, but prior to filing of PS Case No. 39/2026
- Date of FIR: 2026 (exact date not specified in judgment)
- Date of Petition: 23.04.2026 (date of hearing)
- Date of Order: 30.04.2026
The Parties' Positions
For the Petitioner
The petitioner’s counsel argued that:
- The 2018 amendment to the Bihar Prohibition and Excise Act abolished the legal fiction of deemed possession
- The concept of a "presumed offender" based on residence or familial relationship was expressly repealed
- The petitioner had no knowledge of or control over the liquor found in the house
- The sole evidence against him is an inadmissible custodial confession
- He is a person of clean antecedents with no history of liquor-related offences
For the Respondent/State
The Additional Public Prosecutor opposed the grant of anticipatory bail, arguing that:
- The offence under Section 30(a) is serious and attracts mandatory imprisonment
- The presence of liquor in the house implicates all occupants
- The amendment does not negate liability for possession in a shared dwelling
Relief Sought
The petitioner sought anticipatory bail under Section 438 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, in the event of arrest in PS Case No. 39/2026.
The Legal Issue
The central question was whether, after the 2018 amendment to the Bihar Prohibition and Excise Act, a person can be prosecuted for possession of liquor solely on the basis of residence in a joint family property where contraband was found, without evidence of personal knowledge, control, or direct possession.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on the legislative intent behind the 2018 amendment, which explicitly removed the provisions for deemed possession and presumed offender status. He cited the absence of any direct evidence linking the petitioner to the liquor, the inadmissibility of Vikash’s custodial confession, and the fact that the property was jointly occupied. He emphasized that the petitioner had no opportunity to exercise control over the premises or the contraband.
For the Respondent/State
The State contended that the 2022 amendment to the Act retained the substantive offence of possession, and that residence in a premises where liquor is found creates a prima facie case. The A.P.P. argued that the 2018 amendment did not eliminate all forms of constructive possession, and that the petitioner’s familial relationship to the actual possessor warranted investigation.
The Court's Analysis
The Court undertook a textual and purposive interpretation of the Bihar Prohibition and Excise (Amendment) Act, 2018, noting that the legislature had deliberately repealed the provisions that allowed for presumption of guilt based on residence or familial ties. The Court observed that the 2022 amendment did not revive these repealed doctrines.
"The concept of deemed possession and presumed offender has been done away with by the 2018 amendment, and the prosecution cannot resurrect it through circumstantial inference without direct evidence of knowledge or control."
The Court further held that a custodial confession, even if admissible in other contexts, cannot serve as the sole basis for implicating a third party, particularly where the confessor is a close relative and the property is jointly owned. The Court emphasized that criminal liability under the Act must be grounded in personal, voluntary, and conscious possession, not mere association.
The Court also noted the petitioner’s clean antecedents and the absence of any prior involvement in similar offences, which weighed in favor of granting provisional relief.
The Verdict
The petitioner was granted provisional anticipatory bail. He shall be released on furnishing bail bonds of Rs. 500 with two sureties of like amount each, to the satisfaction of the trial court in PS Case No. 39/2026. The provisional order shall remain in force for six weeks from 30.04.2026. The trial court shall verify the petitioner’s criminal antecedents within this period. If no prior case is found, the bail shall be confirmed automatically. If any prior case is discovered, the provisional bail shall stand vacated.
What This Means For Similar Cases
Deemed Possession Is Legally Defunct
- Practitioners must now challenge any prosecution under the Bihar Excise Act that relies on residence or familial ties as the sole basis for possession
- The 2018 amendment has effectively raised the threshold for proving possession to require direct, personal, and verifiable control over the contraband
- Any charge sheet based on "constructive possession" without corroborative evidence is vulnerable to quashing
Custodial Confessions Cannot Implicate Third Parties
- A confession by one accused cannot be used to establish guilt against another, especially in shared premises
- Courts must scrutinize whether the confessional statement is independently corroborated by physical or documentary evidence
- In joint family settings, the burden shifts to the prosecution to prove individual knowledge and intent
Anticipatory Bail in Excise Cases Requires Nuanced Assessment
- Clean antecedents and absence of direct evidence are now decisive factors in bail applications under the amended Act
- Courts are likely to grant provisional bail where the prosecution’s case rests on circumstantial or inadmissible evidence
- The six-week verification window set by the Court provides a procedural safeguard against misuse of bail orders
