Patna High Court
Chandan Kumar @ Chandan RaiversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The Court held that bail must be granted because the charge‑sheet was filed without the required FSL report and no extension was sought, invoking the default‑bail provision of the NDPS Act and the supremacy of Article 21.
Summary
The petitioner, Chandan Kumar, sought regular bail in a case where police alleged possession of 1.050 kg of charas and a loaded pistol, charging him under Section 111 of the Bihar Narcotic Substances Act, several provisions of the Arms Act, and Sections 8, 20(B)(ii)(B) of the NDPS Act. The petitioner contended that the seizure was illegal, the police failed to comply with Section 105 of the BNSS, and the charge‑sheet was filed before the forensic laboratory (FSL) report, violating procedural requirements. He relied on a prior High Court order interpreting Section 36(a) sub‑clause 4 of the NDPS Act, which provides for default bail if a charge‑sheet is not filed within 180 days without a valid extension. The State opposed bail, citing the petitioner’s alleged involvement in seven prior cases. The Court, noting the absence of an extension application and the filing of the charge‑sheet without the FSL report, held that the petitioner was entitled to bail under the default‑bail provision and the primacy of Article 21, and ordered his release on bail with a bond of Rs. 10,000 and two sureties.
Issues considered
- Whether bail should be granted when the charge‑sheet is filed without the mandatory forensic laboratory report and without a statutory extension under the NDPS Act.
- Whether the default‑bail provision of Section 36(a) sub‑clause 4 of the NDPS Act applies in the absence of a charge‑sheet within 180 days.
- Whether the petitioner’s right to liberty under Article 21 overrides the statutory embargo created by Section 37(a) of the NDPS Act.
Legislation cited
- Arms Act — s. 25(1-B)a, 26, 35
- Bihar Narcotic Substances Act — s. 105, 111
- Narcotic Drugs and Psychotropic Substances Act — s. 20(B)(ii)(B), 36(a) sub‑clause 4, 37(a), 8
Subjects
- bail
- NDPS Act
- default bail
- charge sheet delay
- Article 21
- fundamental rights
- seizure procedure
- criminal antecedent
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.13155 of 2026
Arising Out of PS. Case No.-264 Year-2024 Thana- LALGANJ District- Vaishali
======================================================
Chandan Kumar @ Chandan Rai Son of Ramashankar Ray @ Rama Shankar
Rai Resident of Village - Agarpur, P.S. - Lalganj, Dist. - Vaishali.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Anish Kumar, Advocate
For the Opposite Party/s : Mr. Ajit Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 08-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Lalganj P.S. Case No. 264 of 2024 registered for the
offence punishable under Section 111 of the BNS, Sections
25(1-B)a, 26 and 35 of the Arms Act and Sections 8, 20(B),(ii)
(B) of the N.D.P.S. Act.
3. The case of the prosecution, in short, is that from
the possession of the petitioner, 1.050 kg of charas and one
loaded country made pistol with live cartridge were recovered.
4. Learned counsel appearing on behalf of the
petitioner has submitted that petitioner is innocent and has
committed no offence. He has been falsely implicated in this
case. He also submits that nothing has been recovered from the
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possession of the petitioner. The witnesses of the seizure list are
police personnel and the police have not complied with Section
105 of the BNSS while making the seizure. He further submits
that a supplementary affidavit has been filed by the petitioner
and from perusal of which it will transpire that in this case,
charge sheet was filed on 21.02.2025 and cognizance has been
taken on 10.03.2025, whereas the FSL report was received in
the learned trial court on 26.09.2025. This goes to show that the
charge sheet was filed prior to the FSL report and cognizance
was also taken prior to the FSL report. Moreover, the petitioner
is languishing in judicial custody since 20.08.2024.
5. Learned counsel for the petitioner has relied on an
order of this Court passed in Cr. Misc. No. 84487 of 2024 and in
that order, this court has relied on an order of the learned co-
ordinate Bench of this Court passed in Cr. Misc. No. 65898 of
2023 wherein the learned co-ordinate Bench has opined that
from reading of Section 36(a) sub-clause 4 of the NDPS Act, it
appears that in the case of offence punishable under Section 19
or Section 24 or Section 27(a) or for offences involving
commercial quantity, the charge-sheet can be submitted within
180 days and if the charge-sheet is not submitted within 180
days, the accused person is entitled for default bail. The proviso
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to Section 37(a) speaks that public prosecutor may take an
extension of time for filing the charge-sheet and 180 days time
can be extended for a period up to one year. After the public
prosecutor files that progress report of the investigation and
gives specific reasons for detention of the accused beyond the
said period of 180 days. In the present case, the Special Public
Prosecutor has not filed any application for extension of period
of the charge-sheet and the charge-sheet as per the contention of
the petitioner has been filed without FSL report.
6. In the case of Rabi Prakash vs. the State of
Odisha, Hon'ble Supreme Court has held that the prolonged
incarceration generally militate against the most precious
fundamental right guaranteed under Article 21 of the
Constitution of India and in such situation, the conditional
liberty must override the statutory embargo created under
Section 37 sub-clause 1(b) of the NDPS Act. The charge-sheet
filed without FSL report does not ipso facto creates any
embargo against the fundamental right of a citizen enshrined in
Article 21 of the Indian Constitution.
7. Learned APP appearing for the State has
vehemently opposed the prayer of regular bail. Learned APP has
submitted that the petitioner is having criminal antecedent of
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seven cases.
8. Having heard learned counsel for the parties and
considering the facts and circumstances of the case, this Court is
inclined to enlarge the petitioner on bail. The above named
petitioner is directed to be enlarged on bail on furnishing bail
bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties
of the like amount each to the satisfaction of the learned
Sessions Judge, Vaishali at Hajipur in connection with Lalganj
P.S. Case No. 264 of 2024.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
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