Santosh Kumar v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.72891 of 2024 Arising Out of PS. Case No.-85 Year-2024 Thana- BAISI District- Purnia ====================================================== Santosh Kumar S/O Bijendra Rai @ Vijendra Ray @ Vijendra Singh Resident of Village Sundarpur Ward No 01, P.S. Salimpur District Patna ... ... Petitioner/s

Versus

The State of Bihar ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Anish Kumar, Advocate For the State :

Mr. Navin Kumar Pandey, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY ORAL ORDER 20-03-2025 Heard Mr. Anish Kumar, learned counsel for the petitioner and Mr. Navin Kumar Pandey, learned APP for the State.

2. The petitioner has prayed for regular bail in a case registered for the offence punishable under Section 414 of the Indian Penal Code and Sections 8/20(b)(ii)(c) of the NDPS Act.

3. The case of the prosecution is that the informant was checking the vehicles and in that course, one vehicle was intercepted and the driver was apprehended, he disclosed his name as Santosh Kumar (petitioner herein). It is further alleged that brown colour object in a plastic bag was found in the dickey of the vehicle and it was prima facie ganja. The

2/4 total amount of ganja recovered from the possession of the petitioner is 21.767 kilogram.

4. Learned counsel for the petitioner submits that the petitioner is innocent and has committed no offence. He has falsely been implicated in this case. Learned counsel for the petitioner has submitted that petitioner is only the driver and he has no concern with alleged recovery of the contraband. He further submits that charge sheet has been filed without FSL report. From perusal of the FSL report, it transpires that the FSL report was submitted on 29.07.2024 whereas the charge sheet was filed on 05.04.2024. A statement has been made in para-3 of this petition that the petitioner has got no criminal antecedent. Moreover, he is languishing in judicial custody since 06.04.2024.

5. The prayer of the petitioner is twofold: First is that he is not concerned with the seized contraband and second is that FSL report was not available at the time of filing of the charge sheet. Learned counsel for the petitioner has also submitted that this issue has been discussed by the Co-ordinate Bench of this Court in Cr. Misc. No. 65898 of 2023, wherein the Co-ordinate Bench has opined that from reading of Section 36(a) sub-clause 4 of the NDPS Act, it

3/4 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 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 petitioners hae 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 rights 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

4/4 filed without FSL report does not ipso facto creates any embargo against the fundamental right of a citizen enshrined in Article 21 of Indian Constitution.

7. Learned APP appearing for the State has opposed the prayer of regular bail.

8. Having regard learned counsel for the parties and considering the facts and circumstances of the case as well as custody of the petitioner, this court is inclined to enlarge the petitioner on bail. The above named petitioner is directed to be released on bail in connection with Baisi P.S. Case No. 85 of 2024 on furnishing bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Sessions Judge-cum-Special Judge, NDPS Act, Purnea.

(Ashok Kumar Pandey, J) Shubham/- U T