Patna High Court – Orders
Deepak Kumar Jha 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.72413 of 2024
Arising Out of PS. Case No.-440 Year-2024 Thana- FORBESGANJ District- Araria
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Deepak Kumar Jha, Son of Kalikant Jha, Resident of Village- Palasi P.S.-
Narpatganj District- Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. N.K. Agarwal, Sr. Advocate
Ms. Manisha Khushi, Advocate
Mr. Kumar Rajdeep, Advocate
Mr. Raushan Raj, Advocate
For the Opposite Party/s : Mr. B.N. Pandey, APP
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CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV ORDER
6 07-03-2025
Heard learned counsel for the petitioner and Mr. B.N.
Pandey, learned APP for the State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Section 20(b)(ii)(c) of
the N.D.P.S. Act.
3. The case of the prosecution is that the police got an
information that ganja is being smuggled by car. On the
information, they apprehended a white color car coming from the
side of Bhadeshwar to N.H. 57. Two persons along with the
vehicle were apprehended who disclosed their name as Deepak
Kumar Jha (the petitioner) and Suraj Kumar. In search of the car,
four sacks; two from the dikki and two from the back seat of the
vehicle were recovered. On measuring, it was found 70 kg of
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ganja. The seizure list was prepared.
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 the witnesses of the seizure
list are not the independent witnesses which is in violation of
Section 100 of the Cr.P.C. The seizure list does not bear the
signature of the petitioner and as such the petitioner cannot be
fastened with the liability of such seizure. The FIR does not state
anything about the compliance of mandatory provisions of law as
contained in Section 42 of the NDPS Act. No information with
regard to the alleged search and seizure which was to be
conducted in the night was given by the informant to the higher
police officials either prior to the search and seizure or thereafter.
No sampling was conducted. Petitioner is only the driver. It has
also been submitted that the FSL report has not yet come.
5. The prayer of the petitioner is two fold: First is that the
petitioner and the co-accused are the driver of the seized vehicle.
From perusal of the FIR itself, it transpires that two persons who
were apprehended from the vehicle have disclosed that the vehicle
and ganja belong to one Arjun Sah. The petitioner is only the
carrier. Regarding second question, as far as the question of filing
of charge-sheet without FSL report is concerned, this issue has
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been discussed by 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 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 present case, the
Special Public Prosecutor has not filed any application for
extension of the period of the charge-sheet and the charge-sheet as
per the contention of the petitioners have been filed without FSL
report. From perusal of the seizure list, it also transpires that it
does not bear the signature of the petitioner. It is further submitted
that the petitioner is languishing in judicial custody since
12.07.2024.
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
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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 Indian Constitution.
7. Learned APP appearing for the state has opposed the
prayer of regular bail.
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 released on bail in connection with
Forbesganj P.S. Case No. 440 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, N.D.P.S. Act, Araria.
(Ashok Kumar Pandey, J)
Sudhanshu/-
U T