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Patna High Court

Mithlesh Kumar@ Mithilesh KumarversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court granted regular bail to the petitioners, finding insufficient material to justify continued detention under the NDPS Act.

Summary

Mithlesh Kumar and Vishal Kumar were arrested in connection with a seizure of 23.6 kg of ganja from a vehicle owned by co‑accused Sunil Kumar Mandal and charged under Sections 8, 20(b)(ii)(c), 25 and 29 of the NDPS Act. After being denied bail earlier, they filed a second regular bail application, arguing that the vehicle did not belong to them, they lacked conscious possession, and that their two‑year pre‑trial detention violated the right to a speedy trial under Article 21. The State opposed bail, invoking the strictness of Section 37 of the NDPS Act and alleging involvement in offences under the Bihar Prohibition and Excise Act, 2016. The Court, relying on Supreme Court precedents (Hussainara Khatoon, Satendra Kumar Antil, Mohd Muslim @ Hussain, Dharampal Singh) and noting the petitioners' young age, lack of incriminating material, and the unlikely near‑term conclusion of the trial, held that continued detention was unjustified. Consequently, the Court granted regular bail with a bond of Rs.25,000 each and specified conditions for trial attendance and non‑interference with evidence.

Issues considered

  • Whether bail can be granted under Section 37 of the NDPS Act given the facts and the delay in trial.
  • Whether the petitioners had conscious possession of the seized narcotic substance.
  • Whether the right to a speedy trial under Article 21 mandates the grant of bail.
  • Whether ownership of the vehicle from which the narcotics were recovered affects liability for trafficking.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • speedy trial
  • conscious possession
  • Section 37
  • delay
  • right to liberty
  • criminal procedure
  • drug trafficking

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.37115 of 2025
                       Arising Out of PS. Case No.-80 Year-2024 Thana- MAHISHI District- Saharsa
                 ======================================================
           1.     Mithlesh Kumar@ Mithilesh Kumar Son of Rajendra Mehta Resident of
                  village - Dahupatti Ward No.- 7, P.S.- Bhaptiyahi, District - Supaul
           2.    Vishal Kumar @ Vishal Sharma Son of Badri Sharma Village - Goripatti
                 Ward No.- 3, P.S.- Bhaptiyahi, District - Supaul

                                                                                   ... ... Petitioner/s
                                                       Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr.Bindeshwar Prasad Singh, Adv.
                 For the Opposite Party/s :       Mr.Anuj Kumar Shrivastava, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
                                       ORAL ORDER

8   03-04-2026                  Heard Mr. Bindeshwar                 Prasad Singh, learned

                   Advocate for the petitioners and Mr. Anuj Kumar Shrivastava,

                   learned Advocate for the State.

                                2. This is an application for grant of regular bail to the

                   petitioners, who have been made accused in connection with

                   Mahishi P.S. Case No. 80 of 2024, registered for the offences

                   punishable under Sections 8, 20(b)(ii)(c), 25, 29 of the Narcotic

                   Drugs and Psychotropic Substances Act.

                                3. This is the second attempt made on behalf of the

                   petitioners, as earlier prayer for bail of the petitioners was

                   turned down by this Court on 18.09.2024 passed in Cr. Misc.

                   No. 60038 of 2024 taking into consideration the fact that the
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          petitioners were found in possession of narcotic substance,

          coupled with the fact that the recovery was made from the

          vehicle of the petitioners in which they, along with another co-

          accused person, were found sitting.

                       4. Learned Advocate for the petitioners submitted that

          the vehicle, in question, in which the petitioners were traveling

          does not belong to them, rather the vehicle belonged to one

          Sunil Kumar Manal from where ganja like substance weighing

          23.600 kgs. was recovered, which material has been fortified

          during the course of investigation. He further submits that since

          the prayer for bail of the petitioner was turned down on merit,

          he is not making any submission touching with the merit of the

          case but this fact cannot be ignored that the petitioners had been

          incarcerating for over a period of two years and now charges

          have been framed but till date only four prosecution witnesses

          have been examined and, as such, there is no likelihood of

          conclusion of the trial in near future. It is further submitted that

          admittedly there is recovery of 23.600 Kgs. ganja which is just

          above the commercial quantity and now the petitioners have

          been incarcerated for two years, hence taking note of the

          decision rendered by the Apex Court in the case of Hussainara

          Khatoon v. Home Secy., State of Bihar [(1980) 1 SCC 81], it is
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          submitted that Hon’ble Apex Court has mandated that Article 21

          included within its ambit the right to speedy trial and the

          procedure under which a person is deprived of personal liberty

          should be “reasonable, fair and just”, hence the petitioners

          should be enlarged on bail.

                       5. Reliance has also been placed on a decision

          rendered by the Hon’ble Supreme Court in the case of Satendra

          Kumar Antil v. Central Bureau of Investigation [(2022) 10

          SCC 51] wherein the Court has observed as follows:

                          “64. Now we shall come to category (C). We do
                          not wish to deal with individual enactments as
                          each special Act has got an objective behind it,
                          followed by the rigor imposed. The general
                          principle governing delay would apply to these
                          categories also. To make it clear, the provision
                          contained in Section 436A of the Code would
                          apply to the Special Acts also in the absence of
                          any specific provision. For example, the rigor as
                          provided under Section 37 of the NDPS Act would
                          not come in the way in such a case as we are
                          dealing with the liberty of a person. We do feel
                          that more the rigor, the quicker the adjudication
                          ought to be. After all, in these types of cases
                          number of witnesses would be very less and there
                          may not be any justification for prolonging the
                          trial. Perhaps there is a need to comply with the
                          directions of this Court to expedite the process and
Patna High Court CR. MISC. No.37115 of 2025(8) dt.03-04-2026
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                          also a stricter compliance of Section 309 of the
                          Code.”

                       6. He lastly referred to the decision passed in Mohd

          Muslim @ Hussain v. State (NCT of Delhi) [2023 SCC

          OnLine SC 352], wherein the Apex Court in its paragraphs no.

          22 and 23 has held as follows:

                                   “22. Before parting, it would be important
                          to reflect that laws which impose stringent
                          conditions for grant of bail, may be necessary in
                          public interest; yet, if trials are not concluded in
                          time, the injustice wrecked on the individual is
                          immeasurable. Jails are overcrowded and their
                          living     conditions,       more    often     than   not,
                          appalling….
                                   23. The danger of unjust imprisonment, is
                          that inmates are at risk of “prisonisation” a term
                          described by the Kerala High Court in A Convict
                          Prisoner v. State, 1993 SCC OnLine Ker 127 “a
                          radical transformation” whereby the prisoner:
                                   “loses his identity. He is known by a
                                   number. He loses personal possessions. He
                                   has       no        personal        relationships.
                                   Psychological problems result from loss of
                                   freedom, status, possessions, dignity any
                                   autonomy of personal life. The inmate
                                   culture of prison turn out to be dreadful.
                                   The prisoner becomes hostile by ordinary
                                   standards. Self-perception changes.”
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                       7. On the other hand, learned Advocate for the State

          vehemently opposed the bail application and submitted that the

          rigors provided under Section 37 of the NDPS Act clearly bars

          the bail unless there is material which suggests that there are

          reasonable grounds for believing that the accused is not guilty of

          such offence and he would not indulge in such crime while on

          bail. He further submits that now the trial is in progress and it is

          likely to be concluded within a reasonable period of time. He

          further drew the attention of this Court to para-3 of the bail

          application and submitted that both the petitioners have been

          found indulged in a case arising out of Bihar Prohibition and

          Excise Act, 2016.

                       8. Before parting with the case, it would be pertinent

          to take note of the decision rendered by the Hon’ble Supreme

          Court in Dharampal Singh vs State of Punjab [(2010) 9 SCC

          608], wherein while explaining the term ‘conscious possession’

          the Court held that knowledge of contraband has to be gleaned

          from the facts and circumstances of the case. The standard of

          conscious possession would be different in case of public

          transport vehicle with several persons as opposed to private

          vehicle with a few person known to one another.

                       9. From the disclosure made in the FIR and during
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          investigation it has fortified that the vehicle in question belongs

          to co-accused Sunil Kumar Mandal and recovery has been made

          from the dickey of the said vehicle, which was duly under the

          control of the owner of the vehicle.

                       10. In view of the aforesaid facts; considering the

          submissions advanced and taking note of the rulings of the

          Hon’ble Supreme Court as referred hereinabove, especially in

          the cases of Mohd Muslim @ Hussain and Satendra Kumar

          Antil (supra), coupled with the age of the petitioners about 24

          and 20 years respectively and the vehicle from where recovery

          has been made does not belong to the petitioners, besides no

          other cogent materials have been collected during the course of

          investigation, which prima facie indicate that they are indulged

          in trafficking of such illicit substance; as also they have been

          incarcerated for over a period of two years and there is no

          likelihood of the trial being concluded in near future, let the

          petitioners, named above, be released on bail on furnishing bail

          bonds of Rs.25,000/- (Twenty Five Thousand) each with two

          sureties of the like amount each to the satisfaction of learned

          Sessions Judge cum Special Judge, Saharsa in connection with

          Mahishi P.S. Case No. 80 of 2024, subject to the condition that

          one of the bailors will be the close relatives of the petitioners
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                     with further conditions which are as follows:-

                                           (i) The petitioners will cooperate in conclusion

                                           of the trial.

                                           (ii) They will remain present on each and

                                           every date of trial till disposal of the case.

                                           (iii) They will not try to tamper with the

                                           evidence or intimidate the witnesses to delay

                                           the disposal of trial.

                                           (iv) In the event of default of two consecutive

                                           dates without any cogent reason, their bail

                                           bonds shall liable to be cancelled.



                                                 (Harish Kumar, J)
Anjani/-

U      T


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