Patna High Court – Orders
Nitish Kumar vs The State Of Bihar on 17 January, 2025
Author: Rajesh Kumar Verma
Bench: Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.74969 of 2024
Arising Out of PS. Case No.-8 Year-2022 Thana- N.C.B (GOVERNMENT OFFICIAL)
District- Aurangabad
======================================================
Nitish Kumar S/o Sri Surendra Singh, Resident of village- Usri, Khaira,
Police Station- Mehandia, District- Arwal.
... ... Petitioner
Versus
1. The State of Bihar.
2. The Union of India through Zonal Director, N.C.B., New Delhi.
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Anil Kumar, Advocate
For the NCB (UoI) : Mr. Ram Anurag Singh, CGC
For the State : Mr. Sanjay Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
5 17-01-2025
Heard Mr. Anil Kumar, the learned counsel for the
petitioner, Mr. Ram Anurag Singh, the learned Central
Government’s Counsel and Mr. Sanjay Kumar Singh, the
learned Additional Public Prosecutor for the State.
2. Petitioner seeks regular bail who is in custody since
12.03.2022, in connection with N.C.B. Cr. No. 08 of 2022, FIR
dated 11.03.2022, registered for the offences punishable under
Sections 08(c), 20(b)(ii)(c), 25 and 29 of the NDPS Act.
3. Earlier the petitioner has moved before this
Hon’ble Court in Cr. Misc. No. 29361 of 2022, which was
rejected vide order dated 14.03.2023. Thereafter, the petitioner
again moved before this Hon’ble Court in Cr. Misc. No. 34373
Patna High Court CR. MISC. No.74969 of 2024(5) dt.17-01-2025
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of 2024, which was dismissed as withdrawn with a liberty to the
petitioner to move a fresh application before the learned trial
Court vide order dated 21.06.2024.
4. According to the prosecution case, the NCB team
acting upon the secret information reached at Aurangabad
bypass on 11.03.2022 and when the truck in question was
sighted, the same was stopped and after a thorough search of the
truck 198 kg of ganja was recovered.
5. Learned counsel for the petitioner submits that
petitioner has clean antecedent and he has falsely been
implicated in the present case. He further submits that upon
perusal of the FIR and seizure list, it appears that 198 kilograms
of ganja has been recovered from the truck in question and the
petitioner is the driver and one Birendra Paswan is the khalasi
of the truck in question. He further submits that statement of
petitioner was recorded under Section 67 of the NDPS Act,
1985 and on 12.03.2024, the petitioner has disclosed that the
associate of the seized truck is the co-accused person namely,
Manoj Kumar @ Manoj Singh and apart from that, a notice was
also issued under Section 67 of the NDPS Act to the said Manoj
Kumar @ Manoj Singh, who then voluntary confessed his
involvement in the trafficking of the seized ganja. Apart from
that, the CDR location also suggests that Manoj Kumar @
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Manoj Singh was in touch with other co-accused persons. He
lastly submits that the co-accused Manoj Kumar @ Manoj
Singh has been granted bail by this Court vide order dated
09.08.2024 passed in Cr. Misc. No. 57398 of 2023.
6. Learned counsel for the petitioner has relied upon
the order dated 21.06.2023 passed in Cr. Misc. No. 24660 of
2023, in the case of Harender Raut @ Harendra Raut v. The
State of Bihar, whereby this Court has been pleased to grant
bail to the said petitioner and relevant portions of the order
dated 21.06.2023 passed in Cr. Misc. No. 24660 of 2023 has
been extracted herein below:
“In support of his submissions, learned counsel for the
petitioner has relied upon a judgment of the Apex
Court in the case of MOHD MUSLIM @ HUSSAIN v.
STATE (NCT OF DELHI) reported in 2023 LiveLaw
(SC) 260.
Learned counsel for the petitioner relied upon the
aforesaid judgment referring the paragraph nos. 10,
11, 12, 13, 14, 15, and 16, which reads as follows:
10. Section 37 of the NDPS Act reads as follows:
“Offences to be cognizable and non-bailable–(1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973-
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for a
term of imprisonment of five years or more under this
Act 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,
Patna High Court CR. MISC. No.74969 of 2024(5) dt.17-01-2025
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(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 or any other law for the time being
in force, or granting of bail.
11. In this case, as it stands, the appellant has been
in custody since 03.10.2015, barring grant of interim
bail from time to time, for wedding ceremonies and
to take care of his ailing mother. It was observed by
this court, in State of Madhya Pradesh v. Kajad
while commenting on Section 37 of the NDPS Act,
that a “liberal” approach should not be adopted:
“Negation of bail is the rule and its grant and
exception under sub clause (ii) of clause (b) of
Section 37(1). For granting the bail the court must,
on the basis of the record produced before it, be
satisfied that there are reasonable grounds for
believing that the accused is not guilty of the offences
with which he is charged and further that he is not
likely to commit any offence while on bail. It has
further to be noticed that the conditions for granting
the bail, specified in clause (b) of subsection (I) of
Section 37 are in addition to the limitations provided
under the Code of Criminal Procedure or any other
law for the time being in force regulating the grant of
bail.”
12. This court has to, therefore, consider the
appellant’s claim for bail, within the framework of
the NDPS Act, especially Section 37. In Supreme
Court Legal Aid Committee (Representing
Undertrial Prisoners) v. Union of Indial0, this court
made certain crucial observations, which have a
bearing on the present case while dealing with
denial of bail to those accused of offences under the
NDPS Act:
Patna High Court CR. MISC. No.74969 of 2024(5) dt.17-01-2025
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provision very few persons accused of certain offences
under the Act could secure bail. Now to refuse bail on
the one hand and to delay trial of cases on the other is
clearly unfair and unreasonable and contrary to the
spirit of Section 36(1) of the Act, Section 309 of the
Code and Articles 14, 19 and 21 of the Constitution.
We are conscious of the statutory provision finding
place in Section 37 of the Act prescribing the
conditions which have to be satisfied before a person
accused of an offence under the Act can be released.
Indeed we have adverted to this section in the earlier
part of the judgment, We have also kept in mind the
interpretation placed on a similar provision in Section
20 of the TADA Act by the Constitution Bench in
Kartar Singh v. State of Punjab [(1994) 3 SCC 569].
Despite this provision, we have directed as above
mainly at the call of Article 21 as the right to speedy
trial may even require in some cases quashing of a
criminal proceeding altogether, as held by a
Constitution Bench of this Court in ‘A.R. Antulay v.
R.S. Nayak [(1992) 1 SCC 225], release on bail,
which can be taken to be embedded in the right of
speedy trial, may, in some cases be the demand of
Article 21, As we have not felt inclined to accept the
extreme submission of quashing the proceedings and
setting free the accused whose trials have been
delayed beyond reasonable time for reasons already
alluded to, we have felt that deprivation of the
personal liberty without ensuring speedy trial would
also not be in consonance with the right guaranteed
by Article 21. Of course, some amount of deprivation
of personal liberty cannot be avoided in such cases;
but if the period of deprivation pending trial becomes
unduly long, the fairness assured by Article 21 would
receive a jolt. It is because of this that we have felt
that after the accused persons have suffered
imprisonment which is half of the maximum
punishment provided for the offence, any further
deprivation of personal liberty would be violative of
the fundamental right visualized by Article 21, which
has to be telescoped with the right guaranteed by
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Article 14 which also promises justness, fairness and
reasonableness in procedural matters.”
13. When provisions of law curtail the right of an
accused to secure bail, and correspondingly fetter
judicial discretion (like Section 37 of the NDPS Act,
in the present case), this court has upheld them for
conflating two competing values, i.e., the right of the
accused to enjoy freedom, based on the presumption
of innocence, and societal interest – as observed in
Vaman Narain Ghiya v. State of Rajasthan (“the
concept of bail emerges from the conflict between
the police power to restrict liberty of a man who is
alleged to have committed a crime, and presumption
of innocence in favour of the alleged criminal…”).
They are, at the same time, upheld on the condition
that the trial is concluded expeditiously. The
Constitution Bench in Kartar Singh v. State of
Punjab made observations to this effect. In Shaheen
Welfare Association v. Union of India again, this
court expressed the same sentiment, namely that
when stringent provisions are enacted, curtailing the
provisions of bail, and restricting judicial discretion,
it is on the basis that investigation and trials would
be concluded swiftly. The court said that
Parliamentary intervention is based on:
“a conscious decision has been taken by the
legislature to sacrifice to some extent, the personal
liberty of an undertrial accused for the sake of
protecting the community and the nation against
terrorist and disruptive activities or other activities
harmful to society, it is all the more necessary that
investigation of such crimes is done efficiently and an
adequate number of Designated Courts are set up to
bring to book persons accused of such serious crimes.
This is the only way in which society can be protected
against harmful activities. This would also ensure
that persons ultimately found innocent are not
unnecessarily kept in jail for long periods.”
14. In a recent decision, while considering bail under
the Unlawful Activities Act (Prevention) Act, 1967,
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this court in Union of India v. K. A. Najeeb14
observed that:
“12. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act,
1987 or the Narcotic Drugs and Psychotropic
Substances Act, 1985 (“the NDPS Act“) which too
have somewhat rigorous conditions for grant of bail,
this Court in Paramjit Singh v. State (NCT of Dethi),
(1999) 9 SCC 252] , Babba v. State of Maharashtra,
(2005) 11 SCC 569 and Umarmia v. State of Gujarat,
(2017) 2 SCC 731 enlarged the accused on bail when
they had been in jail for an extended period of time
with little possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such
special enactments, has thus been primarily justified
on the touchstone of speedy trials to ensure the
protection of innocent civilians.”
The court concluded that statutory restrictions like
Section 43-D(5) of the UAPA, cannot fetter a
constitutional court’s ability to grant bail on ground
of violation of fundamental rights.
15. Even in the judgment reported as Vijay
Madanlal Chaudhary v. Union of India15 this court
while considering bail conditions under the
Prevention of Money Laundering Act, 2002, held
that:
“If the Parliament/Legislature provides for stringent
provision of no bail, unless the stringent conditions
are fulfilled, it is the bounden duty of the State to
ensure that such trials get precedence and are
concluded within a reasonable time, at least before
the accused undergoes detention for a period
extending up to one-half of the maximum period of
imprisonment specified for the concerned offence by
law.”
16. In the most recent decision, Satender Kumar
Antil v. Central Bureau of Investigation prolonged
incarceration and inordinate delay engaged the
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attention of the court, which considered the correct
approach towards bail, with respect to several
enactments, including Section 37 NDPS Act. The
court expressed the opinion that Section 436A
(which requires inter alia the accused to be enlarged
on bail if the trial is not concluded within specified
periods) of the Criminal Procedure Code, 1973
would apply:
“We do not wish to deal with individual enactments as
each special Act has got an objective behind it,
followed by the rigour imposed. The general principle
governing delay would apply to these categories also.
To make it clear, the provision contained in Section
436-A of the Code would apply to the Special Acts also
in the absence of any specific provision. For example,
the rigour as provided under Section 37 of the NDPS
Act would not come in the way in such a case as we
are dealing with the liberty of a person. We do feel
that more the rigour, the quicker the adjudication
ought to be, After all, in these types of cases number
of witnesses would be very less and there may not be
any justification for prolonging the trial. Perhaps
there is a need to comply with the directions of this
Court to expedite the process and also a stricter
compliance of Section 309 of the Code.”
Learned counsel for the petitioner has also relied upon
a judgment of the Hon’ble Apex Court in the case of
Supreme Court Legal Aid Committee Representing
Undertrial Prisoners vs. Union of India and Another
reported in (1994) 6 SCC 731, the directions and
general terms and conditions laid down by the Apex
Court in paragraph nos. 15 and 16, relevant extract of
which reads as follows :
“….We were told by the learned Counsel for the State
of Maharashtra that additional Special Courts have
since been constituted but having regard to the large
pendency of such cases in the State we are afraid this
is not likely to make a significant dent in the huge pile
of such cases. We, therefore, direct as under:
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(i) Where the undertrial is accused of an offence(s)
under the Act prescribing a punishment of
imprisonment of five years or less and fine, such an
undertrial shall be released on bail if he has been in
jail for a period which is not less than half the
punishment provided for the offence with which he is
charged and where he is charged with more than one
offence, the offence providing the highest
punishment. If the offence with which he is charged
prescribes the maximum fine, the bail amount shall
be 50% of the said amount with two sureties for like
amount. If the maximum fine is not prescribed bail
shall be to the satisfaction of the concerned Special
Judge with two sureties for like amount.
(ii) Where the undertrial accused is charged with an
offence(s) under the Act providing for punishment
exceeding five years and fine, such an undertrial
shall be released on bail on the term set out in (i)
above provided that his bail amount shall in no case
be less than Rs. 50,000 with two sureties for like
amount.
(iii) Where the undertrial accused is charged with an
offence(s) under the Act punishable with minimum
imprisonment of ten years and a minimum fine of
Rupees one lakh, such an undertrial shall be released
on bail if he has been in jail for not less than five
years provided he furnishes bail in the sum of Rupees
one lakh with two sureties for like amount.
(iv) Where an undertrial accused is charged for the
commission of an offence punishable under Scctions
31 and 31A of the Act, such an undertrial shall not be
entitled to be released on bail by virtue of this order.
The directives in Clauses (i), (ii) and (iii) above shall
be subject to the following general conditions:
(i) the undertrial accused entitled to be released on
bail shall deposit his passport with the learned Judge
of the Special Court concerned and if he does not
hold a passport he shall file an affidavit to that effect
Patna High Court CR. MISC. No.74969 of 2024(5) dt.17-01-2025
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Special Judge. In the latter case the learned Special
Judge will, if he has reason to doubt the accuracy of
the statement, write to the Passport Officer concerned
to verify the statement and the Passport Officer shall
verify his record and send a reply within three weeks.
If he fails to reply within the said time, the learned
Special Judge will be entitled to act on the statement
of the undertrial accused;
(ii) the undertrial accused shall on being released on
bail present himself at the police station which has
prosecuted him at least once in a month in the case of
those covered under Clause (i), once in a fortnight in
the case of those covered under Clause (ii) and once
in a week in the case of those covered by Clause (iii),
unless leave of absence is obtained in advance from
the Special Judge conerned;
(iii) the benefit of the direction in Clauses (ii) and (iii)
shall not be available to those accused persons who
are, in the opinion of the learned Special Judge, for
reasons to be stated in writing, likely to tamper with
evidence or influence the prosecution witnesses;
(iv) in the case of undertrial accused who are
foreigners, the Special Judge shall, besides
impounding their passports, insist on a certificate of
assurance from the Embassy/High Commission of the
country to which the foreigner-accused belongs, that
the said accused shall not leave the country and shall
appear before the Special Court as and when
required;
(v) the undertrial accused shall not leave the area in
relation to which the Special Court is constituted
except with the permission of the learned Special
Judge;
(vi) the undertrial accused may furnish bail by
depositing cash equal to the bail amount;
(vii) the Special Judge will be at liberty to cancel bail
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if any of the above conditions are violated or a cases
for cancellation of bail is otherwise made out; and
(viii) after the release of the undertrial accused
pursuant to this order, the cases of those undertrials
who have not been released and are in jail will be
accorded priority and the Special Court will proceed
with them as provided in Section 309 of the Code.
16. We may state that the above are intended to
operate as one time directions for cases in which the
accused persons are in jail and their trial are
delayed. They are not intended to interfere with the
Special Court’s power to grant bail under Section 37
of the Act. The Special Court will be free to exercise
that power keeping in view the complaint of
inordinate delay in the disposal of the pending cases.
The Special Court will, notwithstanding the
directions, be free to cancel bail if the accused is
found to be misusing it and grounds for cancellation
of bail exist. Lastly, we grant liberty to apply in case
of any difficulty in the implementation of this
order.”
Directions issued in the case of Supreme Court Legal
Aid Committee (Supra) was made applicable to the
State of Bihar and some other States by subsequent
order passed in the same case which has been reported
in (1995)4 SCC 695.”
7. Learned counsel for the petitioner submits that this
is petitioner’s first offence and in the present case, it is an
admitted fact that petitioner is in custody since 12.03.2022,
which is two years and ten months.
8. Vide order dated 06.12.2024, a report was called
for with regard to the stage of the trial and report dated
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03.01.2025 of the learned trial Court reveals that case is pending
at the stage of prosecution evidence and only three prosecution
witnesses have been examined as yet.
9. Learned counsel for the petitioner submits that in
view of the report of the learned trial Court, there is no chance
of early conclusion of the trial in near future and the petitioner is
in custody since 12.03.2022.
10. The learned Additional Public Prosecutor for the
State on the other hand has vehemently opposed the prayer for
bail of the petitioner.
11. Considering the rival submissions made by the
learned counsel for the parties, petitioner’s clean antecedent, his
period of custody, report of the learned trial Court, the order of
this Court dated 21.06.2023 passed in Cr. Misc. No. 24660 of
2023 and grant of bail to the co-accused person namely, Manoj
Kumar @ Manoj Singh by this Court, let the petitioner, above-
named, be released on bail on furnishing bail bond of Rs.
50,000/- (Rupees fifty thousand only) with two sureties of the
like amount each to the satisfaction of the learned 1 st Additional
District and Sessions, Judge-cum-Special Judge (NDPS),
Aurangabad in connection with N.C.B. Cr. No. 08 of 2022,
subject to the following conditions:
(i). Petitioner shall co-operate in the trial and shall
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learned trial Court and shall remain physically present as
directed by the learned trial Court and on his absence on two
consecutive dates without sufficient reason, his bail bond shall
be cancelled by the learned trial Court.
(ii). If the petitioner tampers with the evidence or
the witnesses, in that case, the prosecution will be at liberty to
move for cancellation of bail.
(iii). And further condition that the learned trial
Court shall verify the criminal antecedent of the petitioner and
in case, at any stage, it is found that the petitioner has concealed
his criminal antecedent, the learned trial Court shall take step
for cancellation of bail bond of the petitioner. However, the
acceptance of bail bonds in terms of the above-mentioned order
shall not be delayed for purpose of or in the name of
verification.
(Rajesh Kumar Verma, J)
Shahnawaz/-
U T
