Patna High Court – Orders
Kamal Yadav @ Kamal vs The State Of Bihar on 7 March, 2025
Author: Ashok Kumar Pandey
Bench: Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.75666 of 2024
Arising Out of PS. Case No.-110 Year-2024 Thana- JOGBANI District- Araria
======================================================
Kamal Yadav @ Kamal Son of Gayanand Yadav Village- Parasi, P.S.-
Sonamani Godam, Dist- Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Vijay Kishore Bharti, Advocate
For the Opposite Party/s : Mr.Yogendra Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV ORDER
6 07-03-2025
Heard Mr. Vijay Kishore Bharti, learned counsel for
the petitioner and Mr. Yogendra Kumar, learned APP for the
State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Sections 20(b)(ii)(c)
of the N.D.P.S. Act.
3. The case of the prosecution as per the written report of
the informant is that on 27.05.2024 at about 19:15 O’clock, he
got the secret information that in the night, a consignment of
Ganja is about to pass near Pillar No. 177. So, they kept special
vigilance. At about 22:30 O’clock some persons were seen
carrying a sac on their head entering from the side of Nepal
inside India and on seeing the team, they tried to escape, two
persons were apprehended and rest succeeded to escape. The
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apprehended persons disclosed their names as Sagar Yadav and
Kamal Yadav. In the search of the sacks, 129 kg of ganja was
recovered.
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. He has got no criminal
antecedent. It is also submitted that nothing has been recovered
from the conscious possession of the petitioner except a mobile
set containing sim. The petitioner has no concerned with the
seized contraband nor he was ever indulged in such illegal
business of contraband. From perusal of the FIR as well as
seizure list, it is evident that all five sacks were recovered in
abandoned condition. From the FIR, it appears that the seized
contraband belong to Shyam Yadav, Dinkar Yadav and Kishan
Yadav. The petitioner is only carrier of them for which Rs.
4,000/- was to be paid to him.
5. Learned counsel for the petitioner next submits that the
charge-sheet has been filed without FSL report. From perusal of
the case diary, it transpires that the charge-sheet was filed on
23.08.2024, whereas the FSL report was received on 30.10.2024
it means much after the filing of charge-sheet. From perusal of
the FIR, it is clear that it is alleged that the petitioner along with
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others threw away the sac which he was carrying on his head
and tried to flee away and was apprehended and from his
physical possession, only a mobile was recovered. It is further
submitted that the petitioner is languishing in judicial custody
since 28.05.2024.
6. The prayer of the petitioner is two fold: First is that
nothing has been recovered from his physical possession rather
the recovery was made from the sacs which were allegedly
thrown away, only mobile has been recovered and the charge-
sheet was filed without FSL report. Second is that the charge-
sheet was filed without FSL report. In answer to question no. 1,
it is apparent from the FIR itself that the accused persons were
coming from the side of Nepal who threw away the sacs which
they were carrying on their head and in those sacs 129 kg of
ganja was recovered; so it can safely be said that nothing was
recovered from the physical possession of the petitioner. In
answer to question no. 2, 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
appears that in the case of offence punishable under Section 19
or Section 24 or Section 27(a) or for offences involving
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commercial quantity, the charge-sheet can be submitted within
180 days and if the charge-sheet is not submitted within 180
days, the accused 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.
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 article 21 of the
Indian Constitution.
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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 petitioner on bail. The above named
petitioner is directed to be released on bail in connection with
Jogbani P.S. Case No. 110 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 Court of Sessions Judge-cum-
Special Judge, N.D.P.S. Act, Araria.
10. Accordingly, the present bail application stands
allowed.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T
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