Patna High Court – Orders
Raushan Kumar Paswan 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.84487 of 2024
Arising Out of PS. Case No.-86 Year-2024 Thana- BIRPUR District- Supaul
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Raushan Kumar Paswan, S/o- Mahendra Paswan, Resident of Village- Maheshpatti
W.No-10, P.S.-Ghurnabazar Dist-Araria
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. N.K. Agrawal, Sr. Advocate
Mr. Arvind Kumar, Advocate
Mr. Kumar Rajdeep, Advocate
Ms. Diksha Kumari, Advocate
For the Opposite Party/s : Mr. Tarun Prasad Mandal, APP
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CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV ORDER
4 07-03-2025
Heard Mr. N.K. Agrawal, learned senior counsel for
the petitioner and Mr. Tarun Kumar Mandal, learned APP for the
State.
2. The petitioner has prayed for regular bail in a case
registered for the offence punishable under Sections 8/20(b)(ii)
(c) of the NDPS Act.
3. The case of the prosecution is that the informant
received an information and on the basis, he prepared a raiding
party at about 10:30 P.M., near Refugee Colony between pillar
No. 200 and 201. At about 03:00 A.M., three accused persons
having white color sacks in their hand were coming from Nepal
side when they were intercepted, two of them managed to
escape after throwing their plastic bags however one accused
namely, Raushan Kumar Paswan (the petitioner) was
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apprehended by the raiding party. Thereafter, the apprehended
accused person namely, Raushan Kumar Paswan was
interrogated and a notice was served under Section 50 of the
NDPS Act and from a plastic bag, total 93 kg of illicit ganja was
recovered in several packets.
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 from perusal of the FIR, it is
clear that three persons were carrying sacks, two persons
managed to escaped throwing away their sacks and one persons
was apprehended. From perusal of the FIR, it is not clear as to
how much sacks this petitioner was having on his head and from
perusal of the seizure list, it is clear that the witnesses of seizure
list are not the independent witnesses. The seizure was made
near village Benalli Patti, Ward No. 1. From perusal of the FIR
itself, it is not clear as to how much of the contraband was being
carried by this petitioner.
5. Learned counsel for the petitioner next submits that
in this case, charge-sheet was filed without the FSL report. From
perusal of the final form, it is clear that it has been mentioned by
the I.O. that FSL report has not been received and despite that
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charge-sheet has been filed. From perusal of the FIR, it also
transpires that the contraband was examined by narcotic
detection kit.
6. The prayer of the petitioner is two fold: First is that
it is not clear from the FIR as to how many sacks were being
carried by the petitioner. In this regard, the learned counsel for
the petitioner has submitted that FIR itself depicts that three
persons were coming, out of which, two persons managed to
escape throwing away the sacks over their head and this person
was apprehended. Admittedly, two other persons were also
carrying the bags. Altogether, 16 packets were seized, but it is
not clear from the FIR as to how many packets were being
carried by this petitioner. Second objection is that the charge-
sheet has been filed without the 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 sacks
which they were carrying on their head and in those sacks, 93
kg of ganja was jointly recovered from 16 plastic bags. 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
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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 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.
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
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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.
8. Learned APP appearing for the State has opposed
the prayer of regular bail.
9. Having regard 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
Birpur P.S. Case No. 86 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, Supaul.
(Ashok Kumar Pandey, J)
lata/-
Sudhanshu/-
U T