Patna High Court
Kanhaiya KumarversusThe State of Bihar
- Decided
- Disposal
- REJECTED
- Bench
- RAJESH KUMAR VERMA
Holding
Bail cannot be granted where a commercial quantity of narcotic is recovered and there is no material to demonstrate the accused’s lack of knowledge or likelihood of reoffending, as mandated by Section 37 of the NDPS Act.
Summary
Kanhaiya Kumar was arrested on 27-12-2025 in connection with a case involving the recovery of 275.72 grams of the narcotic "Kota" (smack) from a co‑accused. He applied for bail, contending that he had no conscious possession of the drugs and that the investigating authorities had not complied with Sections 42 and 50 of the NDPS Act. The prosecution opposed bail, arguing that the quantity seized constituted a commercial amount, invoking the embargo provision of Section 37 of the NDPS Act, and highlighted the petitioner’s prior criminal record. The court examined the applicable legal standards, referring to Supreme Court precedents that require a belief that the accused is not guilty and will not reoffend before bail can be granted in such cases. Finding no material to show the petitioner’s lack of knowledge or risk of reoffending, the court refused the bail application.
Issues considered
- Whether bail can be granted in an NDPS case where a commercial quantity of narcotic has been recovered.
- Whether the petitioner had conscious possession and knowledge of the seized narcotic.
- Whether the provisions of Sections 42 and 50 of the NDPS Act were complied with during the investigation.
- Application of Section 37 of the NDPS Act in denying bail.
Legislation cited
- Bihar Narcotic Substances Act, 2023 — s. 317(5), 3(5)
- Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 — s. 20, 22, 37, 42, 50, 8(c)
Subjects
- NDPS Act
- Bail
- Commercial quantity
- Narcotic drugs
- Section 37
- Possession
- Criminal antecedents
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.16783 of 2026
Arising Out of PS. Case No.-174 Year-2025 Thana- INDUSTRIAL AREA District- Vaishali
======================================================
Kanhaiya Kumar S/O Shiv Kumar Paswan R/V- Dipnagar Dhanauti,P.S-
Industrial Area,Dist- Vaishali
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Hemant Kumar, Advocate
For the Opposite Party/s : Mr. Bhanu Pratap Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
2 17-03-2026 Heard Mr. Hemant Kumar, learned counsel for the
petitioner and Mr. Bhanu Pratap Singh, learned APP for the
State.
2. Petitioner seeks bail who is in custody since
27.12.2025 in connection with Industrial Area P.S. Case No. 174
of 2025 for the offences punishable under Sections 317(5) and
3(5) of the BNS, 2023 and Sections 20, 22 and 8(c) of the
N.D.P.S. Act.
3. Recovery is of 275.72 grams of narcotic substance
"Kota" (Smack).
4. Learned counsel for the petitioner submits that
petitioner is innocent and he has falsely been implicated in the
present case. He further submits that it appears from the F.I.R.
as well as seizure list that nothing has been recovered from the
Patna High Court CR. MISC. No.16783 of 2026(2) dt.17-03-2026
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conscious possession of the petitioner rather 275.72 gram of
narcotic substance "Kota" (Smack) has been recovered from the
possession of the co-accused, namely, Ratnesh Kumar @ Bulla
in question. He further submits that the petitioner was
apprehended along with the co-accused. He further submits that
there is non-compliance of Sections 42 and 50 of the NDPS Act.
5. Learned Additional Public Prosecutor on the other
hand vehemently opposed the prayer for bail of the petitioner
and submits that the recovered contraband is more than the
commercial quantity, so there is embargo under Section 37 of
the N.D.P.S. Act and apart from that the petitioner carries four
criminal antecedents other than the present one.
6. The grant of bail in NDPS cases where the recovery
of commercial quantity of narcotic is alleged is circumscribed
under Narcotic Drugs and Psychotropic Substance Act, 1985,
Section 37 which says that before grant of bail, the Court must
have reason to believe that petitioners have not committed the
offence and in the event of release he would not commit similar
offence.
7. The issue was considered by the Hon’ble Supreme
Court in the case of State of Kerala and Ors. Vs. Rajesh and
Ors. reported in (2020) 12 SCC, 122 as well as in the case of
Patna High Court CR. MISC. No.16783 of 2026(2) dt.17-03-2026
3/3
Narcotic Control Bureau Vs. Mohit Aggarwal reported in
AIR 2022 SC 3444 and Union of India vs. Ajay Kumar Singh
@ Pappu reported in 2023 SCC OnLine SC 3456 dated
28.03.2023.
8. The recovery of commercial quantity of contraband
recovered would not justify that the petitioner had no
knowledge of the narcotic nor there is any material to
substantiate that the petitioner would not commit such offence
in the event of release.
9. Hence, I am not inclined to enlarge the petitioner on
bail in connection with Industrial Area P.S. Case No. 174 of
2025 pending in the Court of learned Sessions cum Special
Judge NDPS Act, Vaishali.
10. Prayer is refused.
(Rajesh Kumar Verma, J)
Vanisha/-
U T
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