Patna High Court
Mahesh Prasad KushwahaversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- RAJESH KUMAR VERMA
Holding
The court granted bail to the petitioner, subject to specified conditions, finding no embargo under Section 37 of the NDPS Act.
Summary
Mahesh Prasad Kushwaha was arrested on 5 September 2025 in connection with a case under Sections 8(c) and 21(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act for allegedly possessing 18 bottles of 100 ml Onerex cough syrup. The petitioner claimed a clean antecedent and argued that the seized quantity was far below the commercial quantity, so Section 37 of the NDPS Act, which imposes an embargo on bail, should not apply. The State opposed bail, contending that the contraband was recovered from the petitioner’s possession. The court examined the facts, noted the petitioner’s clean record and the sub‑commercial quantity, and decided to grant bail on a bond of Rs 10,000 with two sureties, subject to conditions of cooperation, appearance, non‑tampering with evidence, and verification of antecedents. The bail order was directed to be implemented by the Special Judge, Sitamarhi.
Issues considered
- Whether bail can be granted under the NDPS Act when the seized contraband is less than the commercial quantity and thus not covered by the embargo provision of Section 37.
- Whether the petitioner’s clean antecedent and the nature of the seized quantity justify the grant of bail.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21(b), 37, 8(c)
Subjects
- bail
- NDPS Act
- commercial quantity
- Section 37
- clean antecedent
- cough syrup seizure
- conditions of bail
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.87953 of 2025
Arising Out of PS. Case No.-185 Year-2025 Thana- BARGAINIA District- Sitamarhi
======================================================
Mahesh Prasad Kushwaha Son of Shivlal Mahto Resident of Village - Koriya
Tola, P.S.- Kalya, District - Bara, Nepal
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Virendra Kumar, Advocate
For the State : Mr. Md. Fahimuddin, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
3 22-01-2026 Heard Mr. Virendra Kumar, learned counsel for the
petitioner and Mr. Md. Fahimuddin, learned APP for the State.
2. Petitioner seeks bail, who is in custody since
05.09.2025, in connection with Bairgania P.S. Case No. 185 of
2025, F.I.R. dated 05.09.2025 registered for the offences
punishable under Sections 8(c) and 21(b) of the N.D.P.S. Act.
3. The case relates to recovery of 18 bottles each 100 ml
Onerex Cough Syrup.
4. Learned counsel for the petitioner submits that the
petitioner has clean antecedent and he has been falsely implicated
in the present case. It appears from the F.I.R. that 18 bottles each
100 ml Onerex Cough Syrup was recovered from the possession
of the petitioner. He further submits that there is non-compliance
of mandatory provisions of N.D.P.S. Act and recovery is less than
Patna High Court CR. MISC. No.87953 of 2025(3) dt.22-01-2026
2/3
the commercial quantity and hence there is no embargo under
Section 37 of the N.D.P.S. Act to enlarge the petitioner on bail. He
further submits that the police after investigation submitted
chargesheet against the petitioner and the petitioner is in custody
since 05.09.2025.
5. Learned Additional Public Prosecutor for the State,
on the other hand, vehemently opposed the prayer for bail of the
petitioner and submits that the recovery has been made from the
possession of the petitioner.
6. Considering the facts and circumstances of the case
and the fact that the petitioner having clean antecedent and the
recovered contraband is less than the commercial quantity, let the
petitioner, above named, be released on bail on furnishing bail
bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of
the like amount each to the satisfaction of learned Special Judge,
Sitamarhi in connection with Bairgania P.S. Case No. 185 of 2025,
subject to the following conditions :-
(1) Petitioner shall co-operate in the trial and shall be
properly represented on each and every date fixed by the Court
and shall remain physically present as directed by the Court and on
his absence on two consecutive dates without sufficient reason, his
bail bond shall be cancelled by the Court below.
(2) If the petitioner tampers with the evidence or the
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witness, in that case, the prosecution will be at liberty to move for
cancellation of bail.
(3) And, further condition that the court below shall
verify the criminal antecedent of the petitioner and in case at any
stage, it is found that the petitioner has concealed his criminal
antecedents, the court below shall take step for cancellation of bail
bond of the petitioner. However, the acceptance of bail bonds in
terms of the above-mentioned order shall not be delayed for
purpose of or in the name of verification.
(Rajesh Kumar Verma, J)
Ibrar//-
U T
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