Patna High Court – Orders
Roshan Kumar @ Raushan Kumar Das vs The State Of Bihar on 10 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15800 of 2025
Arising Out of PS. Case No.-13 Year-2025 Thana- KATIHAR MUFFASIL District- Katihar
======================================================
Raju Kumar, S/o Ganga Prasad, R/o Sirsa, PS- Katihar, Distt- Katihar
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
with
CRIMINAL MISCELLANEOUS No. 18113 of 2025
Arising Out of PS. Case No.-1 Year-2025 Thana- BALIA BELON District- Katihar
======================================================
Roshan Kumar @ Raushan Kumar Das S/O Manoj Kumar Das R/O Vill.-
Dhangi, P.S.- Balia Belon, Dist.- Katihar.
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
(In CRIMINAL MISCELLANEOUS No. 15800 of 2025)
For the Petitioner/s : Ms. Vaishnavi Singh, Amicus Curiae
Mr. Sanjeev Kumar Singh, Advocate
For the Opposite Party/s : Mr. Choubey Jawahar, APP
Ms. Renu Kumari, APP
Mr. Nand Kishore Prasad, APP
(In CRIMINAL MISCELLANEOUS No. 18113 of 2025)
For the Petitioner/s : Mr.Ajit Kumar Singh, Advocate
For the Opposite Party/s : Mr. Nitya Nand Tiwary, APP
Mr.Sanjay Kumar Tiwary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH
MISHRA
ORAL ORDER
3 10-04-2025
The present application i.e. Cr. Misc. No. 15800 of
2025 was filed for grant of bail to the petitioner in connection
with Muffasil P.S. Case No. 13 of 2025 registered for the
offences under Section 8(B) and 21(c) of Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short ‘N.D.P.S. Act‘).
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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In the present case, 0.19 gram smack and 6.56 gram ganja were
recovered which admittedly fall under the ambit of small
quantity but F.I.R. was registered under Section 21(c) of the
N.D.P.S. Act, although it ought to have been registered under
Section 21(a) of the N.D.P.S. Act as recovery is below small
quantity. Prima facie, this Court was of the view that offence
under Section 21(a) of the N.D.P.S. Act is bailable in nature, as
such, the petitioner ought to have been granted bail by police
itself, however, petitioner was not granted bail by the police
and the learned Sessions Judge has also rejected the bail of the
petitioner. Thus, this Court vide order dated 20.03.2025 granted
bail to the petitioner but for better appreciation of provisions of
law, posted the matter for today. Later, Cr. Misc. No. 18113 of
2025, which is similar to the present matter, was also directed to
be listed along with Cr. Misc. No. 15800 of 2025 for today.
2. Earlier vide order dated 20.03.2025, Mrs. Vaishnavi
Singh was appointed as Amicus Curiae to assist this Court.
3. In both these cases, the recovery is below the small
quantity but for the sake of convenience, this Court would take
facts from Cr. Misc. No. 15800 of 2025.
4. Heard learned Amicus Curiae and learned APPs for
the State.
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5. The prosecution allegation is that total 0.19 gram
smack and 6.56 gram ganja were recovered out of which 1.57
gram ganja along with one mobile was recovered from the
petitioner while 0.19 gram smack and 4.99 gram ganja were
recovered from co-accused Vishnu Kumar.
6. Learned Amicus Curiae submits that since the
recovery in the instant case is below small quantity, the F.I.R.
ought to have been registered under Section 21(a) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short ‘N.D.P.S. Act‘) instead of Section 21(c) of the Act. She
further contends that the title of Section 37 of the N.D.P.S. Act
states that “offences are to be cognizable and non-bailable”, but
it does not mention all offences. The deliberate omission of the
word “all” in the title indicates the legislature’s intent. Within
the section itself, the word “every” appears in clause (1)(a), and
its placement is purposeful. The N.D.P.S. Act classifies offences
and prescribes punishments based on the quantity of narcotic
drugs or psychotropic substances involved–small,
intermediate, and commercial quantities. If the legislature had
intended to make all offences non-bailable, it would have
clearly stated so in the title itself. The absence of such wording
suggests otherwise. She further submits that making all
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offences non-bailable would defeat the very purpose of this
quantity-based classification. For instance, equating possession
of a small quantity (possibly for personal use) with possession
of a commercial quantity would lead to the same harsh
consequences, prolonged incarceration regardless of the
severity or context of the offence. This approach would
undermine the rehabilitative intent of the law, particularly for
users, addicts, or those found in possession of small quantities.
Sections 39 and 64A of the NDPS Act provide a legal
foundation for prioritizing treatment over punishment,
highlighting the need to reform implementation practices and
place greater emphasis on de-addiction and rehabilitation. The
legislature appears to have carefully crafted Section 37 to
reflect a distinction. While it explicitly states that all offences
are cognizable, it does not similarly declare that all offences are
non-bailable. This selective usage clearly shows a legislative
intent to exclude certain categories–especially minor offences
–from being treated as non-bailable. Thus, the omission of the
term “all offences are non-bailable” within the operative part of
Section 37 is intentional and significant. It reflects a nuanced
approach aimed at balancing the gravity of drug offences with
the need for rehabilitation and proportional punishment. In this
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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regard, she has relied on different judgments of various High
Courts which are as under:
(i) Abdul Aziz v. State of U.P., 2002 SCC OnLine All
1223
(ii) Shaji v. Kerala State, decided on 18 Nov 2003,
by a Division Bench of the Kerala High Court.
(iii) Stefan Mueller v. State of Maharashtra, 2010
SCC OnLineBom 1974
(iv) Order dated 23.09.2019 passed in S.B. Cr. Misc.
Bail Application No. 12786/2019 by Single
Bench of Rajasthan High Court.
7. Learned APPs for the State submits that small
quantity of contraband was recovered from the petitioner in
both the cases , however, heading of the Section 37 says the
offences to be cognizable and non-bailable.
8. This Court has considered the submission made on
behalf of the parties and have gone through the various
judgments relied on by learned Amicus Curiae.
9. The recovered substance in this case and their
classification specifying small quantity and commercial
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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quantity as per the table of N.D.P.S. Act is as under:
RECOVERED SUBSTANCE-
Substance name Ganja
Serial Number in NDPS 55
table
Vide S.O. 1055(E), dated
19th October, 2001
published in the Gazette of
India Extraordinary, Pt. II,
Sec. 3(ii), No. 773, dated
19th October 2001.
Quantity detained 6.56 gram
Quantity Type Less than small
Small quantity 1 Kg
Commercial Quantity 20 kg.
Substance name Smack (Heroin)
Serial Number in NDPS 56
table
Vide S.O. 1055(E), dated
19th October, 2001
published in the Gazette of
India Extraordinary, Pt. II,
Sec. 3(ii), No. 773, dated
19th October 2001.
Quantity detained 0.19 gram
Quantity Type Less than small
Small quantity 5 gram
Commercial Quantity 250 gram
10. There is no dispute regarding the quantity of
contraband i.e. 0.19 gram smack and 6.56 gram ganja, which is
undisputably a small quantity, hence, the F.I.R. ought to have
been registered under Section 21(a) of the N.D.P.S. Act instead
of Section 21(c) of the said Act. The punishment which is
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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Act is rigorous imprisonment which may extend to one year or
with fine which may extend to Rs. 10,000/- or with both.
Insofar as Section 37 of the N.D.P.S. Act is concerned, it
nowhere stipulates that all offences under the Act are non-
bailable. Despite a prevailing misconception to this effect, a
meticulous reading of the provision makes it evident that such
an interpretation is unfounded.
11. Relevant statutory provisions viz. Section 36A,
Section 37 of the N.D.P.S. Act are as under:
“36A. Offences triable by Special Courts.-
(1)Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a) all offences under this Act which are punishable
with imprisonment for a term of more than three years
shall be triable only by the Special Court constituted for
the area in which the offence has been committed or
where there are more Special Courts than one for such
area, by such one of them as may be specified in this
behalf by the Government.”
(b)xxxxxxx
(c)xxxxx
(d)xxxx
(2)xxxx
(3)xxxx
(4)xxxx
(5) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), the offences
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punishable under this Act with imprisonment for a term
of not more than three years may be tried summarily.”
It clearly states that if the offence in which punishment is
more than three years, the same is triable by the Special Court
and where the offence in which the punishment is less than
three years, the same is triable by any Magistrate as per
provisions contained in Part-II of the 1st Schedule of B.N.S.S.,
2023.
“37. Offences to be cognizable and non-bailable. — (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),–
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable
for [offences under section 19 or section 24 or
section 27A and also for offences involving
commercial quantity] shall be released on bail or
on his own bond unless–
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations
under the Code of Criminal Procedure, 1973 (2 of 1974)
or any other law for the time being in force on granting
of bail.”
12. Upon a careful appraisal of the above provision, it
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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becomes evident that although the heading of Section 37 of the
NDPS Act, 1985 states that offences are to be cognizable and
non-bailable, the substantive text of the section provides
otherwise. Specifically, while the provision clearly declares that
every offence under the Act shall be cognizable, it does not
categorically state that all offences are non-bailable. Had the
legislature intended to designate all offences under the Act as
non-bailable, it could have done so unequivocally by explicitly
stating that all offences are both cognizable and non-bailable.
Instead, the section is carefully crafted to render all offences
cognizable, while prescribing stringent bail conditions only for a
specified category of offences–particularly those involving
commercial quantities of contraband, or offences punishable
under Sections 19, 24, and 27A of the Act. Further Section 37(1)
(b) imposes specific and rigorous restrictions on the grant of bail
in such cases, mandating that no person accused of these
offences shall be released on bail or on their own bond unless
the Public Prosecutor has been given an opportunity to oppose
the application for bail and where the Public Prosecution
opposes the application, the Court is satisfied that there are
reasonable grounds for believing that the accused is not guilty of
such offence and that the accused is not likely to commit any
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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offence while on bail. Moreover, Section 37(2) further fortifies
these limitations by stipulating that the constraints laid down in
Section 37(1)(b) shall operate in addition to the general
conditions for bail as provided under the Code of Criminal
Procedure, 1973 (old Cr.P.C.) or the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023 or any other applicable law in
force.
13. In “Frick India Limited -Vs- Union of India”
and others reported in “(1990) 1 SCC 400”, the Hon’ble
Supreme Court observed as under:
“It is well settled that the heading prefixed to
sections or entries cannot control the plain words
of the provisions; they cannot also be referred to
for the purpose of construing the provision when
the words used in the provisions are clear and
unambiguous; nor can they be used for cutting
down the plain meaning of the words in the
provision. Only, in case of ambiguity or doubt, the
heading or sub-heading may be referred to as an
aid in constrain the provision but even in such case
it could not be used for cutting down the wide
application of the clear words used in the
provisions.”
14. In the instant case, though, the body of Section 37
of the N.D.P.S. Act clearly provides that every offence
punishable under the Act shall be cognizable, however, it does
not provide for making every offence under the Act as non-
bailable. Had the legislature wanted to make every offence
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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under the Act non-bailable, it would have done so by clearly
stipulating for the same in the body of the section and the
omission to do so cannot be regarded as an inadvertent
omission rather it would be presumed that it is a deliberate
omission thereby legislature intending not to make every
offence non-bailable.
15. Now this Court would deal with relevant statutory
of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short
“BNSS, 2023”). Section 4 of the B N S S , 2 0 2 3 i s a s
under:-
“4. Trial of offences under Bharatiya Nyaya Sanhita,
2023 and other laws.-
1. All offences under the Bharatiya Nyaya Sanhita,
2023 shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained.
2. All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to any
enactment for the time being in force regulating the
manner or place of investigating, inquiring into, trying
or otherwise dealing with such offences.”
Further Section 5 of the BNSS, 2023 provides as
follows: –
“5. Saving.- Nothing contained in this Sanhita
shall, in the absence of a specific provision to the
contrary, affect any special or local law for the
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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power conferred, or any special form of procedure
prescribed, by any other law for the time being in
force.”
16. Upon a careful perusal of the aforesaid provisions,
it becomes evident that offences under any law, including
special enactments, are to be governed by the provisions of the
BNSS, 2023 unless the special statute explicitly provides
otherwise. In the present case, as elucidated in the foregoing
discussion, the N.D.P.S. Act does not categorically declare that
all offences under the Act are non-bailable. Therefore, the
classification of offences under the N.D.P.S. Act as bailable or
non-bailable must necessarily be determined with reference to
the general principles laid down in the BNSS, 2023. The BNSS,
2023 being the overarching procedural law, is applicable to all
criminal proceedings–including those under special laws–
except where such special statutes contain specific provisions
that override or modify the general framework. In the absence of
an express provision in the N.D.P.S. Act rendering all offences
non-bailable, the general provisions of the BNSS, 2023
regarding bail will continue to govern such matters, subject to
the specific exceptions carved out under Section 37 of the
N.D.P.S. Act for certain grave offences. It is pertinent to note
that Part II of the First Schedule to the BNSS, 2023 stipulates
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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that any offence punishable with imprisonment for less than
three years, or with fine only, shall be classified as a bailable
offence. In the absence of any express provision in the N.D.P.S.
Act, 1985 categorically declaring that all offences under the Act
are non-bailable, the general principles enumerated in Part II of
the First Schedule to the BNSS, 2023, shall be applicable to
offences under the N.D.P.S. Act as well. Consequently, it is held
that the offence under Section 21(a) of the N.D.P.S. Act–which
prescribes a punishment of imprisonment for a term which may
extend to one year or with fine, or with both–falls squarely
within the ambit of a bailable offence, as per the classification
under the BNSS, 2023.
16. Bailable offence is defined under Section 2(c) of the
BNSS, 2023 which is as under:
“2(c):- “bailable offence” means an offence which
shown as bailable in the First Schedule, or which is
made bailable by any other law for the time being in
force; and “non-bailable offence” means any other
offence;
Thus as per Section 2(c) of BNSS, 2023, only those offences
would fall in the category of ‘bailable offence’ which are
mentioned in the First Schedule of BNSS, 2023 or have been
specifically declared as ‘bailable offences’ under any Special
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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bailable’. The same was the position in the Code of Criminal
Procedure, 1973 which was replaced by BNSS, 2023 and thus,
all the offences shall be ‘non-bailable’ unless shown and
specified as ‘bailable’.
17. Now, this Court will analyse the judicial
pronouncements made by different High Court. In Abdul Aziz
v. State of U.P., 2002 SCC OnLine All 1223, the Allahabad
High Court observed as under in paragraphs 2, 8, 9 and 10:
“2. The facts of this case are that a case under
Section 8/21 N.D.P.S. Act has been registered
against the petitioner at case crime No. 257 of
2001, police station Maduadeeh, district
Varanasi. According to prosecution the
petitioner was found in possession of 2.5 gm. of
heroine….
8. From the analysis of provisions of section 37
of the N.D.P.S. Act and sections 4 and 5 of the
Cr. P.C. it is clear that except or offences under
sections 19, 24 and 27-A of the Act, the
provisions for bail as given in the Cr. P.C. will
apply. The offences no doubt are also cognizable
and to this extent also the provisions of the Act
will prevail over the provisions of the Cr. P.C.
Therefore, in the matter of bail the provisions of
Cr. P.C. will apply in the present case.
9. Bailable offences have been defined under
clause (a) of section 2. Cr. P.C. which means
offences which is shown as bailable in the first
Schedule, or which is made bailable by any
other law for the bail being in force and “non-
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first Schedule of Cr. P.C. consists of two parts,
the first part is regarding the offences under the
I.P.C. and second part is regarding offences
against other law. The second part provide that
if the offence is punishable with imprisonment
for less than three years or fine only it shall be
bailable and can be tried by any Magistrate.
10. In view of the above the provisions, the
offence alleged to have been committed is a
bailable offence.”
18. In Stefan Mueller v. State of Maharashtra, 2010
SCC OnLine Bom 1974, the Bombay High Court observed as
under in paragraphs 10 and 11:
“10. . …The title or heading of section 37 of NDPS
Act shows that offences shall be cognizable and
non-bailable. However, as noted above, in the body
of the section, the legislature has only declared that
all the offences under the Act shall be cognizable,
but the legislature has not declared that all the
offences under the Act shall be non-bailable. In
clause (b) only it speaks about the limitations on
granting of bail in addition to the limitations under
the Cr.P.C. while granting bail. Therefore, the
provisions of Cr.P.C. will have to be looked into to
find out whether offences under the NDPS Act are
bailable or not.
11. First schedule to the Cr.P.C. 1973 is about
classification of offences. Against each offence, it is
specifically mentioned whether offence is
cognizable or non-cognizable, whether it is bailable
or non-bailable and by what court it is triable. Part
I of the Schedule deals with offences under the
Indian Penal Code, while Part II deals with
offences against other laws. Therefore, Part II will
be relevant to find out whether offences under the
NDPS Act are bailable or not. In part II, the first
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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death, imprisonment for life or imprisonment for
more than 7 years, it is non bailable. As per second
entry, if the offence is punishable with imprisonment
for 3 years and upwards but not more than 7 years,
it is also non-bailable. The third entry which is the
last entry in this Part, declares that if the offence is
punishable with imprisonment for less than 3 years
or with fine only, it is bailable and non cognizable.
There are several offences under the NDPS act
which are punishable with imprisonment which may
extend to 10 years and for period which may extend
to 20 years. There are certain offences which are
punishable with imprisonment for less than 3 years
or with fine. The offences under Section 20(b) (ii)
(A) and Sec. 27 are such offences as they are
punishable with imprisonment which may extend to
six months or with fine. In view of the punishment
prescribed for these offences, they fall in third entry
in part II of the Schedule and, therefore, these
offences will be bailable. As noted earlier,
S.37(10(a) declares that all the offences under the
NDPS Act are cognizable notwithstanding the
provisions of Cr.P.C. If that provision would not be
there, by virtue of classification in Part II, these
offences whould have been noncognizable, but they
are made cognizable by specific provision of
Section 37(1)(a).”
19. In Raj Kumar v. State of Rajasthan 2019 SCC
OnLine Raj 5732, Para 8, Rajasthan High Court observed, “By
virtue of Section 37(1) of the NDPS Act, the offence has become
cognizable, however, as per Item No. 3 in the list (In Part II of
the First Schedule) offence is clearly bailable.”
20. In Muhammed Navas Mahamood v. Station House
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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Officer, 2020 SCC OnLine Ker 564, decided on February 6,
2020, the Kerala High Court observed as under in paragraphs
14 and 19:
“14. The offence under Section 22(a) of the Act is
punishable with rigorous imprisonment for a term
which may extend to one year or with fine which
may extend to ten thousand rupees, or with both.
The punishment prescribed for the offence under
Section 20(b)(ii) A of the Act is also the same. It
follows that as per the last entry in Part II of the
First Schedule of the Code, the aforesaid offences
are bailable.
19. The right to claim bail under Section 436(1) of
the Code in a bailable offence is an absolute and
indefeasible right. In bailable offences, there is no
question of discretion in granting bail. There is no
manner of doubt that bail in a bailable offence can
be claimed by accused as of right. So long as the
accused is prepared to give bail, the Court is bound
to grant bail to a person accused of a bailable
offence (See Rasiklal v. Kishore : (2009) 4 SCC 446
: AIR 2009 SC 1341 and Talab Haji Hussain v.
Madhukar Purshottam Mandkar : AIR 1958 SC
376). Bail can be refused to a person accused of a
bailable offence only under the circumstances
mentioned in Section 436 (2) of the Code (See
Wilson v. State of Kerala: 2011 (2) KHC 129 : 2011
(2) KLT 596).
21. Further in a recent judgment dated 18.12.2024, a
Single Bench of the High Court of Punjab and Haryana in the
case of Kuldeep Singh alias Keepa versus State of Punjab
held as under in paragraph 80 and 81:
“80. In the absence of explicit legislative
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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the judiciary is an interpretative reliance on
Schedule II of the BNSS 2023, which delineates the
classification of offences based on the prescribed
sentence. As per the final column of this Schedule,
offences carrying a sentence of less than three years
are categorically designated as non-cognizable and
bailable. However, within the framework of the
NDPS Act, offences are explicitly classified as
cognizable in the corresponding column of the
Second Schedule. Consequently, the designation of
‘non-cognizable’ cannot be extrapolated to NDPS
offences, given that the Act operates as a Special
Legislation with an overriding effect.
81. Nevertheless, while the NDPS Act
unequivocally declares such offences as cognizable,
it remains silent on their bailability. In light of this
legislative omission, the intent of the legislature
must be discerned through Schedule II of the BNSS
2023, which unambiguously stipulates that all
offenses carrying a sentence of less than three years
shall be treated as bailable. Since the maximum
sentence that may be imposed for an offense
involving a small quantity under the NDPS Act is
one year, it logically follows that such an offense
must be construed as bailable under the prevailing
legal framework.”
22. Recently, in the case of Bilal Hussain versus The
State of Assam by order dated 03.01.2025, a Single Bench of
Gauhati High Court held as under in paragraphs 17 and 18:
“17.On perusal of the above provisions, it
appears that all offences under any other law shall
be dealt with according to the provisions of BNSS
subject to any specific provisions to the contrary in
the special law. In the instant case, as discussed
hereinbefore, as the NDPS Act, 1985 does not
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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said Act shall be non-bailable, hence, the question as
to which of the offences under NDPS Act, 1985 are
bailable and which are non-bailable can be
answered only with the aid of the general provisions
that effect, contained in the BNSS 2023. The general
provisions of the BNSS will apply to all proceedings
under any special law unless the special law
provides for any special provision in that regard.
18. It is pertinent to mention herein that, the
Part II of the 1st Schedule to BNSS, 2023 provides
that if the offence is punishable with imprisonment
for less than 3 years and with fine or with fine only
same has been categorized as a bailable offence.
Thus, in absence of a specific provision in the NDPS
Act, 1985 making all offences under the said Act has
non-bailable, the general provisions provided in Part
II of the 1st schedule of the BNSS, 2023 would be
applicable for the offences under NDPS Act, 1985
also. Accordingly, it is held that the offence under
section 21(a) of the NDPS Act, 1985, which provides
for punishment less than 3 years, is a bailable
offence.”
23. After a thorough examination of the relevant statutory
provisions of the N.D.P.S. Act and the BNSS, 2023 as well as
the judicial pronouncements of various High Courts referred to
hereinabove, this Court finds itself in full concurrence with the
view expressed by the various High Court that offences
involving small quantities under the N.D.P.S. Act are bailable.
Given the statutory silence on this specific issue, and upon a
comprehensive reading of Sections 4 and 5 of the BNSS, 2023,
it is evident that all offences under any other law are to be dealt
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
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with in accordance with the procedural framework of the
BNSS, 2023, except where the special law expressly provides
to the contrary. The BNSS, 2023 outlines the classification of
offences primarily based on the severity of the punishment
prescribed. It is pertinent to note that Part II of the First
Schedule to the BNSS, 2023 stipulates that any offence
punishable with imprisonment for less than three years, or with
fine only, shall be treated as a bailable offence. Since an offence
under the N.D.P.S. Act involving a small quantity of contraband
carries a maximum sentence of one year, it logically and legally
follows that such an offence squarely falls within the ambit of a
bailable offence, as per the classification under the BNSS,
2023. Therefore, in the absence of an explicit provision in the
N.D.P.S Act declaring all offences as non-bailable, the general
provisions laid down in Part II of the First Schedule of the
BNSS, 2023, shall be applicable to offences under the N.D.P.S.
Act as well. This construction upholds the legislative intent and
ensures consistency in the procedural treatment of minor
offences across statutes.
24. In Muhammed Navas Mahamood v. Station House
Officer (supra), wherein the Court authoritatively observed that
the right to claim bail under Section 436(1) of the Criminal
Patna High Court CR. MISC. No.15800 of 2025(3) dt.10-04-2025
21/23
Procedure Code (Cr.P.C.) in the case of a bailable offence is
absolute, indefeasible, and unconditional. The Court further
elucidated that in the case of bailable offences, the grant of bail
is not a matter of judicial discretion but a statutory mandate.
There exists no ambiguity that in bailable offences, an accused
person is entitled to be released on bail as a matter of right,
without the necessity of establishing any exceptional grounds or
circumstances. This Court finds itself in full agreement with the
well-reasoned view adopted by the Kerala High Court. The
legal position is crystal clear–when an offence is classified as
bailable, the accused is entitled to be released on bail upon
arrest, subject only to the execution and furnishing of the
requisite bail bonds or sureties, as may be directed. No formal
bail application is required to invoke this right, and the refusal
to grant bail in such cases would amount to a violation of the
statutory safeguards enshrined under the procedural law.
Therefore, any person accused of an offence involving a small
quantity under Section 21(a) of the N.D.P.S. Act is entitled to be
released on bail forthwith, upon compliance with the conditions
prescribed under law as per provisions of Section 478(1) of
BNSS, 2023.
25. As such, this Court unequivocally holds that the
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offence under Section 21(a) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, which prescribes a
punishment of imprisonment for a term not exceeding one
years, is to be classified as a ‘bailable offence’. Accordingly,
where the contravention under the N.D.P.S. Act involves a
‘small quantity’ of narcotic drugs or psychotropic substances,
as per the relevant notification, such offences shall be treated as
“bailable” in nature. In the case of bailable offence, the right of
bail is a matter of statutory right and in such circumstance,
there is no any discretion available either to the police or the
Court itself. The accused is entitled to be released on bail
automatically upon arrest, subject only to the execution and
furnishing of the requisite bail bonds or sureties, as may be
directed.
26. Registry is directed to circulate a copy of this
order to all the Principal District and Sessions Judge for its
circulation amongst all the judicial officers of the State of Bihar
for strict compliance of the same.
27. In addition, a copy of the order be also sent to the
Director General of Police, Bihar who will also apprise the same
to all Police Officers of the State and is also directed to issue
necessary guidelines and instructions to officers that where
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recovered contraband is small quantity, the offence is bailable
and the suspect is entitled to bail.
28. Before parting with the case, I record my
appreciation for the able assistance rendered by Mrs. Vaishnavi
Singh, learned Amicus Curiae.
29. The Patna High Court Legal Services Committee
is, hereby, directed to pay Rs. 7,000 (Rupees Seven Thousand)
to Mrs. Vaishnavi Singh, learned Amicus Curiae in Cr. Misc.
No. 15800 of 2025 as consolidated fee for the services rendered
by her.
(Rudra Prakash Mishra, J)
Pankaj/AFR
U T
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