Patna High Court
Md. Sultan @ SultanversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
Since the charge‑sheet was filed without the mandatory forensic‑lab report and no extension under Section 37(a) was obtained, the statutory time‑limit was exceeded, warranting default bail under the NDPS Act.
Summary
The petitioner, Md. Sultan, was arrested in connection with a seizure of 260 g of a smokable substance and charged under Sections 8(c) and 21(c) of the NDPS Act. He contended that the seizure was not conducted in accordance with Section 105 of the Bihar Narcotic Substances Act and that the charge‑sheet was filed without the required forensic‑lab (FSL) report, with no extension sought under Section 37(a). The prosecution argued that the petitioner had a prior criminal antecedent. Relying on precedent that a charge‑sheet not filed within the 180‑day period (or its permissible extension) entitles the accused to default bail, and on the Supreme Court’s view that prolonged incarceration infringes Article 21, the court found procedural lapses. Consequently, the court ordered the petitioner’s release on bail upon furnishing a bond of Rs 10,000 with two sureties.
Issues considered
- Whether the charge‑sheet filed without a forensic‑lab report and without a Section 37(a) extension violates the procedural requirements of the NDPS Act.
- Whether the delay in filing the charge‑sheet and the petitioner’s continued custody infringe the fundamental right to liberty under Article 21, warranting default bail.
Legislation cited
- Bihar Narcotic Substances (Control) Act — s. 105
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 36, 37, 8
Subjects
- bail
- NDPS Act
- charge‑sheet delay
- forensic lab report
- Article 21
- default bail
- procedural lapse
- seizure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.90989 of 2025
Arising Out of PS. Case No.-398 Year-2025 Thana- BAHADURGANJ District- Kishanganj
======================================================
Md. Sultan @ Sultan S/O Md. Bhola R/O Ward No. 08, Afsana
Road,Churipatti, P.S- Bahadurganj, Distt.- Kishanganj.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rabindra Kumar Tiwary, Advocate
Mr. Mritunjay Kumar, Advocate
For the Opposite Party/s : Mr. Ram Priya Sharan Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL ORDER
4 08-04-2026 Heard learned counsel for the petitioner and learned
APP for the State.
2. The petitioner has prayed for bail in connection
with Bahadurganj P.S. Case No. 398 of 2025 registered for the
offence punishable under Sections 8(c), 21(c) of the N.D.P.S.
Act.
3. The case of the prosecution, in short, is that from
the possession of the petitioner, altogether 260 grams of smack
like substance 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
case. He also submits that nothing has been recovered from the
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possession of the petitioner. The witnesses of the seizure list are
police personnel and the police has not complied with Section
105 of the BNSS while making the seizure. He further submits
that in this case a chargesheet has been called and from perusal
of the case diary, it will transpire that the I.O. has recorded that
the investigation is pending for sending the samples to FSL. He
further submits that before filing the charge sheet, I.O. has even
not sent the samples to the FSL for getting a report as to whether
the seized material is contraband or not. He further submits that
there is an unreasonable delay in sending the FSL report, as the
same has not been sent till filing of the chargesheet. Moreover,
the petitioner is languishing in judicial custody since
01.10.2025.
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
commercial quantity, the charge-sheet can be submitted within
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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.
7. The application for bail is opposed by learned APP
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for the State and submits that the petitioner is having criminal
antecedent of one case.
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
Sessions Judge-cum-Special Judge (NDPS Act), Kishanganj in
connection with Bahadurganj P.S. Case No. 398 of 2025.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
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