Patna High Court
Mithlesh Kumar@ Mithilesh KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- HARISH KUMAR
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
- Code of Criminal Procedure — s. 309, 436A
- Narcotic Drugs and Psychotropic Substances Act — s. 20(b)(ii)(c), 25, 29, 37, 8
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
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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/-
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