Patna High Court
Raju KumarversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the petitioner is entitled to bail despite the procedural deficiencies and prolonged detention.
Summary
Raju Kumar applied for bail in a case under Sections 8, 20(b)(ii), 20(C) and 22(c) of the NDPS Act where 22.478 kg of ganja was allegedly seized from him, part of a total of 90.857 kg recovered from co‑accused. The petitioner contended that nothing was seized from him, the police failed to comply with Section 105 of the BNSS, and the charge‑sheet was filed without the mandatory forensic laboratory (FSL) report and beyond the 180‑day period without any extension, invoking the right to default bail. The State opposed bail, citing four prior criminal cases against the petitioner. The court, relying on earlier High Court judgments and the Supreme Court’s decision in Rabi Prakash v. State of Odisha, held that the procedural lapses and prolonged detention violated Article 21, and therefore the petitioner was entitled to bail. Accordingly, bail was granted on a bond of Rs.10,000 with two sureties.
Issues considered
- Whether bail can be granted when the charge‑sheet is filed without an FSL report and beyond the statutory 180‑day period without an extension.
- Whether non‑compliance with Section 105 of the BNSS in the seizure process warrants bail.
- Whether the petitioner’s right to liberty under Article 21 overrides the statutory embargo of Section 37 of the NDPS Act.
Legislation cited
- Bihar Narcotic Substances Act (BNSS) — s. 105
- NDPS Act — s. 20(b)(ii), 20(C), 22(c), 36(a) sub‑clause 4, 37(a), 37 sub‑clause 1(b), 8
Subjects
- bail
- NDPS Act
- procedural lapse
- charge‑sheet delay
- FSL report
- Article 21
- default bail
- seizure
- Section 105 BNSS
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.28766 of 2026
Arising Out of PS. Case No.-129 Year-2024 Thana- RAIL HAJIPUR District- Vaishali
======================================================
Raju Kumar S/O Sunil Paswan Resident of Village - Anandpur, Post- Sonpur,
P.S- Sonpur, Dist.- Saran
... ... 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. Uma Shankar Prasad Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
2 05-05-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Hajipur Rail P.S. Case No. 129 of 2024 registered for the
offence punishable under Sections 8/20(b)(ii)/20(C)/22(c) of the
NDPS Act.
3. The case of the prosecution, in short, is that from
the possession of the petitioner, namely, Raju Kumar, altogether
22.478 kg of ganja was recovered, and from other co-accused
persons, including the petitioner, a total of 90.857 kg of ganja
was 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
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case. Learned counsel for the petitioner has made his
submission in twofold. First is that nothing has been recovered
from the 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. Further argument of the learned counsel for the
petitioner is that in this case, the chargesheet was filed without
an FSL report, cognizance was taken without an FSL report, and
even the charge was framed without an FSL report. Learned
counsel for the petitioner has annexed the certified copy of the
order sheet of the learned trial court, which goes to show that on
26.02.2026, the I.O. submitted that FSL report in the court.
Moreover, the petitioner is languishing in judicial custody since
05.10.2024.
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
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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
Article 21 of the Indian Constitution.
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7. The application for bail is opposed by learned APP
for the State and submits that the petitioner has criminal
antecedent of four 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 District
and Additional Sessions Judge-I-cum-Special Judge NDPS,
Vaishali at Hajipur in connection with Hajipur Rail P.S. Case
No. 129 of 2024 corresponding to NDPS Case G.R. No. 21 of
2025.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
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