Patna High Court
Sharda TiwariversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The court held that the petitioners are entitled to bail and ordered their release on bail.
Summary
Sharda and Deepak Tiwari were arrested in connection with the seizure of 19.2 kg of ganja from their residence under Sections 20(b)(ii)B and 22 of the NDPS Act. They contended that the seizure was irregular, the police failed to follow Section 105 of the Bihar Narcotic Substances Act, and no sampling or forensic laboratory report was obtained before the charge‑sheet was filed. The charge‑sheet was filed without an extension under Section 37(a) of the NDPS Act, despite the statutory 180‑day limit. Relying on the Supreme Court’s decision in Rabi Prakash v. State of Odisha and the principle of default bail under Section 36(a) sub‑clause 4, the court held that the prolonged detention violated Article 21. Consequently, the court granted regular bail to both petitioners on a bond of Rs.10,000 with two sureties each.
Issues considered
- Whether the petitioners are entitled to default bail under Section 36(a) sub‑clause 4 of the NDPS Act when the charge‑sheet was filed after the 180‑day period without an extension.
- Whether procedural irregularities in the seizure (non‑compliance with Section 105 of the B.N.S.S., lack of sampling and forensic report) justify granting bail.
- Whether continued detention infringes the petitioners' fundamental right to liberty under Article 21 of the Constitution.
Legislation cited
- Bihar Narcotic Substances Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)B, 22, 36(a), 37(a)
Subjects
- bail
- NDPS Act
- default bail
- procedural lapse
- Article 21
- forensic lab report
- charge‑sheet delay
- sampling
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.80266 of 2025
Arising Out of PS. Case No.-226 Year-2025 Thana- GORIAKOTHI District- Siwan
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1. Sharda Tiwari Son of Late Osihar Tiwari Resident of Village- Saidpur, P.S.-
Goriakothi, Distsrict- Siwan
2. Deepak Tiwari Son of Late Gaata Tiwari Resident of Village- Saidpur, P.S.-
Goriakothi, Distsrict- Siwan
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sarvesh Kashyap, Advocate
For the Opposite Party/s : Mr. Md. Aslam Ansari, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
3 21-01-2026 Heard learned counsel for the petitioners and
learned APP for the State.
2. The petitioners have prayed for regular bail in a
case registered for the offence punishable under sections 20(b)
(ii)B and 22 of the N.D.P.S. Act.
3. The case of the prosecution is that the from the two
rooms of the petitioners, altogether 19.200 kg of ganja was
recovered.
4. Learned counsel for the petitioners submits that the
petitioners are innocent and have committed no offence.
Learned counsel for the petitioners has submitted that from
perusal of the seizure list, it is clear that the recovery is from
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two rooms and it is a joint house. The seizure list witnesses are
police personnel. Police has not followed Section 105 of
B.N.S.S. while preparing seizure. Learned counsel for the
petitioner has further submitted that from perusal of para-34 of
the diary, it is clear that I.O. has recorded that this case is
pending for sampling and FSL report and on the same day, the
charge sheet was filed this goes to show that even on that day
i.e., 01.09.2025, even the sampling of the contraband has not
been done and the FSL report is also not available. He has
further submitted that from perusal of the FIR, it is also clear
that the team which has conducted the raid was not having the
kit to examine the contraband and it is only the personal
satisfaction of the informant that the contraband is ganja.
Moreover, the petitioners are languishing in judicial custody
since 04.07.2025.
5. Learned counsel for the petitioner has further
submitted that this case is squarely covered with the order
passed by this Court in Cr. Misc. No. 65898 of 2023, wherein
the 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
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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.
6. In the present case, the Additional Public
Prosecutor for the State has not filed any application for
extension of period of the charge-sheet and the charge-sheet as
per the contention of the petitioners has been filed without FSL
report.
7. 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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Article 21 of the Indian Constitution.
8. Learned APP appearing for the state has opposed
the prayer of regular bail.
9. Having heard learned counsel for the parties and
considering the facts and circumstances of the case, this court is
inclined to enlarge the petitioners on bail. The above named
petitioners are directed to be released on bail in connection with
Goreyakothi P.S. Case No. 226 of 2025 on furnishing bail bond
of Rs.10,000/- (ten thousand) each with two sureties of the like
amount each to the satisfaction of learned Judicial Magistrate-
1st, Siwan.
(Ashok Kumar Pandey, J)
Shubham/-
U T
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