Patna High Court
Rajesh KumarversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- CHANDRA SHEKHAR JHA
Holding
The court granted bail to the petitioner, directing his release on a bond of Rs 10,000 with two sureties, subject to statutory conditions.
Summary
Petitioner Rajesh Kumar was arrested in June 2025 for alleged possession of 30 bottles of Wincerex cough syrup and 547 tablets of various medicines, offences punishable under Section 21(C) of the NDPS Act. He contended that the contraband was recovered from a joint family house and that he did not have conscious physical possession, and that the mandatory audio‑visual recording of the search under Section 105 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) was not complied with. He further argued that the cough syrup was a legally manufactured pharmaceutical product, suggesting a possible violation of the Drugs and Cosmetics Act rather than the NDPS Act. The prosecution opposed bail, but the court noted the procedural lapses, the lack of proof of conscious possession, and the fact that the investigation was already completed with a charge‑sheet filed. Consequently, the court ordered his release on bail with a bond of Rs 10,000 and two sureties, subject to conditions under Section 437(3) of the CrPC and Section 480(3) of the BNSS.
Issues considered
- Whether bail should be granted to the accused under the NDPS Act given the alleged possession of prohibited drugs.
- Whether the non‑compliance with Section 105 of the BNSS regarding audio‑visual recording of the search and seizure invalidates the prosecution's case.
- Whether the alleged contraband was in the conscious physical possession of the accused.
Legislation cited
- Bhartiya Nagrik Suraksha Sanhita — s. 105, 480(3)
- Code of Criminal Procedure — s. 437(3)
- Drugs and Cosmetics Act
- Narcotic Drugs and Psychotropic Substances Act — s. 21(C)
Subjects
- bail
- NDPS Act
- possession
- search and seizure
- procedural compliance
- joint house
- drug law
- Criminal Procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.540 of 2026
Arising Out of PS. Case No.-177 Year-2025 Thana- SONBERSA District- Sitamarhi
======================================================
Rajesh Kumar, Son of Shatrudhan Mahto @ Shatrudhan Rai @ Shatrughan
Mahto, Resident of Village – Sonbarsa, Ward No.- 11, P.S.- Sonbarsa, District
- Sitamarhi
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
For the Opposite Party/s : Mr. Parmanand Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
2 11-02-2026 Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the State.
2. The accused/petitioner seeks bail in connection
with Sonbarsa P.S. Case No.177 of 2025 registered for the
offence punishable under Section 21(C) of the Narcotic Drugs
and Psychotropic Substances Act (in short ‘NDPS Act’).
3. The accused/petitioner is named in the FIR and is
in custody since 08.06.2025.
4. As per FIR, the petitioner alleged to have in
possession of prohibited 30 pieces of Wincerex cough syrup
and 547 pieces of Aadpam, Nitravin and Smaspo Proxivan
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plus tablets and capsules.
5. It is submitted by learned counsel appearing for
petitioner that the alleged recovery was made from the house
of this petitioner, which is a joint house and several adult
family members resides together and, therefore, it cannot be
said that alleged recovery was made from conscious physical
possession of this petitioner. It is further submitted by
learned counsel that the mandatory compliance of Section
105 of the Bhartiya Nagrik Suraksha Sanhita (in short
‘BNSS’) regarding recording of search and seizure through
audio, video electronic means not appears complied with and,
therefore, false implication cannot be overlooked.
6. It is further submitted that the alleged cough
syrup was manufactured by leading pharmaceutical company,
having prescribed compositions of codein approved by Drug
Controllers and, therefore, at best, it is a case for violation of
provisions as available under Drugs and Cosmetics Act. While
concluding argument, it is submitted that investigation of this
case is already completed, for which, charge-sheet has been
submitted and, as such, there is no chance of tampering with
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the evidence. It is submitted that petitioner found involved in
four criminal cases, where he is on bail.
7. Learned APP opposed the prayer for grant of bail
to the petitioner.
8. In view of aforesaid factual submissions and by
taking note of fact as recovery of alleged contraband not
appears to be made from conscious physical possession of
this petitioner, where the recording of search and seizure
through audio, video electronic means in terms of Section
105 of the BNSS also not appears complied, coupled with
the fact that investigation of this case is already completed,
where petitioner remains in custody since 08.06.2025,
accordingly, the petitioner, above-named, is directed to be
released on bail furnishing bail bond of Rs.10,000/- (Rupees
Ten Thousand) with two sureties of the like amount each to
the satisfaction of the learned Special Judge (N.D.P.S. Act),
Sitamarhi in connection with Sonbarsa P.S. Case No.177 of
2025, subject to the conditions as laid down under Section
437(3) of the Code of Criminal Procedure (for short
‘CrPC’)/under Section 480(3) of the Bhartiya Nagrik
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Suraksha Sanhita (for short ‘BNSS’).
(Chandra Shekhar Jha, J.)
Sanjeet/-
U T
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