Patna High Court
Deepak Kumar @ Dipak KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the petitioner is entitled to bail and ordered his release on bail.
Summary
The petitioner, Deepak Kumar, sought bail in a narcotics case (Sections 21(C), 22 and 23 of the NDPS Act) where 28.66 kg of ganja was seized from a sack allegedly linked to him. The charge‑sheet was filed on 1 May 2024 and cognizance taken on 4 May 2024, but the forensic‑laboratory (FSL) report was only received on 4 March 2025, i.e., after cognizance and without any extension of the statutory 180‑day period. The petitioner argued that the charge‑sheet was filed untimely, no witnesses had been examined, and that under Section 36(a) sub‑clause 4 and the proviso to Section 37(a) of the NDPS Act he was entitled to default bail, a view supported by a Supreme Court decision in Rabi Prakash v. State of Odisha. The State opposed the bail, but the High Court, noting the procedural lapses and the violation of the petitioner’s Article 21 rights, granted bail on a bond of Rs 10,000 with two sureties. The order directed the petitioner to appear before the District & Sessions Judge‑IV, Araria.
Issues considered
- Whether the petitioner is entitled to default bail under Section 36(a) sub‑clause 4 of the NDPS Act when the charge‑sheet was filed without an FSL report and beyond the 180‑day period without a statutory extension.
- Whether prolonged pre‑trial detention without trial violates the petitioner’s fundamental right to liberty under Article 21 of the Constitution.
- Whether the procedural deficiencies in the charge‑sheet and lack of witness examination justify granting bail.
Legislation cited
- NDPS Act — s. 21(C), 22, 23, 36(a) sub‑clause 4, 37(a)
Subjects
- bail
- NDPS Act
- default bail
- charge‑sheet
- forensic laboratory report
- Article 21
- prolonged detention
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.17118 of 2026
Arising Out of PS. Case No.-62 Year-2024 Thana- NARPATGANJ District- Araria
======================================================
Deepak Kumar @ Dipak Kumar Son of Teerath Lal Kamat Resident of
Village - Baelipatti, P.S. - Birpur, Dist. - Supaul.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Anish Kumar, Advocate
For the Opposite Party/s : Mrs. Dr. Indiwar Kumari, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 21-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Narpatganj P.S. Case No. 62 of 2024 registered for the
offence punishable under Sections 21(C), 22 and 23 of the
N.D.P.S. Act.
3. The case of the prosecution, in short, is that two
persons having sacks were coming towards India from the
Nepal border. One of them managed to escape seeing the police,
whereas the other was apprehended, and he was identified as the
petitioner, and it is alleged that from the sack altogether 28.660
kg of ganja was recovered.
4. Learned counsel appearing on behalf of the
petitioner has submitted that petitioner is innocent and has
Patna High Court CR. MISC. No.17118 of 2026(3) dt.21-04-2026
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committed no offence. He has been falsely implicated in this
case. He also submits that earlier the bail petition of this
petitioner was twice rejected vide orders dated 10.09.2024 and
22.07.2025. He also submits that in both the orders, the trial
court was directed to conclude the trial of the petitioner at the
earliest. Stage of trial has been called from the learned trial
court and from perusal of which it is clear that till today no
witness has been examined. He also submits that in this case
police submitted charge sheet on 01.05.2024, cognizance was
taken on 04.05.2024, whereas the FSL report was received in
the trial court on 04.03.2025. He also submits that in this case
the FSL report has been submitted even after the cognizance.
Moreover, a statement has been made in para 3 of the petition
that petitioner has no criminal antecedent and he is languishing
in judicial custody since 04.02.2024.
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
Patna High Court CR. MISC. No.17118 of 2026(3) dt.21-04-2026
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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
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
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4/4
Article 21 of the Indian Constitution.
6. The prayer of learned counsel for the petitioner is
of two fold first is that nothing has been recovered from the
possession of the petitioner and second is that the chargesheet
was filed and cognizance was taken much prior to the FSL
report.
7. The application for bail is opposed by learned APP
for the State.
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 District
& Sessions Judge-IV, Araria in connection with Narpatganj P.S.
Case No. 62 of 2024.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
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