Patna High Court
Sushila DeviversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the petitioner is entitled to bail because the charge‑sheet was filed beyond the statutory period without a valid extension and procedural deficiencies, and the fundamental right to liberty overrides the statutory embargo.
Summary
The petitioner, Sushila Devi, sought regular bail in a case under Sections 8 and 20(b)(ii)(c) of the NDPS Act where 191.3 kg of ganja was allegedly recovered from her hut. The defence argued that the seizure list was prepared before the information was received, the recovery was from a hut not a house, and the charge‑sheet was filed without the mandatory forensic science laboratory (FSL) report, violating procedural requirements. It was also highlighted that the charge‑sheet was filed beyond the 180‑day period prescribed by Section 36(a) sub‑clause 4 of the NDPS Act without any extension application by the public prosecutor. The court relied on its earlier judgments and Supreme Court precedents stating that prolonged detention infringes Article 21 and that statutory embargo can be overridden in such circumstances. Considering these lapses, the court held that the petitioner was entitled to bail and ordered her release on furnishing a bail bond with sureties.
Issues considered
- Whether the petitioner is entitled to bail under the NDPS Act when the charge‑sheet is filed beyond the 180‑day period without an extension.
- Whether the absence of an FSL report in the charge‑sheet bars the grant of bail.
- Whether the statutory provisions of the NDPS Act can be overridden by the fundamental right to liberty under Article 21.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)(c), 36(a) sub-clause 4, 37(a), 37 sub-clause 1(b), 8
Subjects
- bail
- NDPS Act
- charge sheet delay
- Article 21
- fundamental rights
- forensic report
- default bail
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15434 of 2026
Arising Out of PS. Case No.-189 Year-2024 Thana- BELA District- Sitamarhi
======================================================
Sushila Devi W/O Rajaram Mandal R/O Village- Gamhariya, Ward No.-05,
P.S- Bela, Distt.- Sitamarhi.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Jagjit Roshan, Advocate
Mr. Shashank Shekhar, Advocate
Mr. Anjani Kumar, Advocate
For the Opposite Party/s : Mr. Dr.Mrityunjaya Kr.Gautam, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 16-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Sections 8 and 20(b)
(ii)(c) of the Narcotic Drugs and Psychotropic Substances (in
short ‘NDPS’) Act, 1985.
3. The case of the prosecution, in short, is that from
the hut of the petitioner, altogether 191.3 kg of ganja was
recovered.
4. Learned counsel for the petitioner submits that the
petitioner is innocent and has committed no offence. Learned
counsel for the petitioner has submitted that nothing has been
recovered from the possession of this petitioner and the
Patna High Court CR. MISC. No.15434 of 2026(3) dt.16-04-2026
2/4
petitioner is a lady. From perusal of the seizure list, it will
transpire that the seizure list was prepared on 09.08.2024
whereas the information was received to police at 10.08.2024 at
1:30 AM. Learned counsel has submitted that the seizure was
prepared prior to the information. He has further submitted that
the recovery has been made from the hut not from the house. He
has further submitted that police has submitted charge sheet
without the FSL report which is apparent from the charge sheet.
The FSL report is of 14.11.2024 whereas the charge-sheet was
filed on 08.10.2024. The sample was sent to the FSL after delay
of one month. Moreover, the petitioner is languishing in judicial
custody since 10.08.2024 having no criminal antecedent.
5. Learned counsel for the petitioner has further 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
Patna High Court CR. MISC. No.15434 of 2026(3) dt.16-04-2026
3/4
days, the accused person is entitled for default bail. The proviso
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 v. 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 counsel has also relied on an order of the
Hon’ble Supreme Court passed in Special Leave to Appeal
Patna High Court CR. MISC. No.15434 of 2026(3) dt.16-04-2026
4/4
(Crl.) No. 7049 of 2025.
8. Learned APP for the State has vehemently opposed
the prayer for bail and has submitted that in this case out of
eight witnesses, six have been examined.
9. 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 released on bail in connection with
Bela P.S. Case No. 189 of 2024 on furnishing bail bond of
10,000/- (ten thousand) with two sureties of the like amount
each to the satisfaction of learned District and Additional
Sessions Judge-II, Sitamarhi.
(Ashok Kumar Pandey, J)
Shubham/-
U T
Checking your session…