IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 56218 of 2025 Arising Out of PS. Case No.-1030 Year-2025 Thana- PHULWARISHARIF District- Patna ======================================================

Raja Kumar, S/O Moti Mahto, R/O- Kumhar Toli Sangatpar, Ward No.-06, P.S.- Phulwarisharif, Distt.- Patna ... ... Petitioner/s Versus The State of Bihar ... ... Opposite Party/s ======================================================

Appearance :

For the Petitioner/s : Mr. Ram Jiban Pd. Singh, Adv.

For the Opposite Party/s : Mr. Pranav Kumar, APP ======================================================

CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL ORDER

2 12-08-2025 Heard Mr. Ram Jiban Pd. Singh, learned counsel for the petitioner and Mr. Pranav Kumar, learned APP for the State.

2. Petitioner seeks regular bail in connection with Phulwarisharif P.S. Case No. 1030 of 2025 dated 25.06.2025 registered for the offence punishable under sections 8(c)/21(a) of the Narcotic Drugs and Psychotropic Substances, Act, (in short ‘NDPS Act’).

3. The main submissions advanced by petitioner’s counsel are that the instant matter relates to the recovery of eight sachets allegedly containing smack-like material, which collectively weighed 1.76 grams, including the weight of the sachets, on an electronic weighing machine, however, without the sachets, the weight of the contained material was only 0.32 grams, which is a very small quantity but despite this, the trial court rejected the petitioner’s prayer for regular bail in a mechanical manner without considering the prescribed punishment for the alleged offence. It is further submitted that the petitioner has been languishing in jail since 26.06.2025, though against him there is criminal antecedent of one case but he is on bail in the said case.

4. Learned APP for the State has opposed the prayer of the petitioner.

5. Heard both the sides, perused the FIR and the trial court’s order rejecting the bail prayer of the petitioner. Section 37(1) of the NDPS Act says that every offence punishable under NDPS Act shall be cognizable, though upon first reading of the heading of the said section, one may get an impression that all the offences under the NDPS Act are non-bailable, however, on reading the language of section 37 of NDPS Act, it becomes clear that in clause (a) to subsection (1), the legislature has unequivocally declared that notwithstanding anything contained in the code of criminal procedure, every offence punishable under this act shall be cognizable. If this provision would not have been there, certain offences under the NDPS Act punishable with imprisonment for less than three years or with fine, would be non-cognizable in view of Part II of the First Schedule of the BNSS but they are made cognizable because of the specific provision in clause (a) of the section 37(1) of the NDPS Act. If the heading of section 37 is kept aside for a moment, nowhere section 37 specifically declares that every offence punishable under the NDPS Act shall be non-bailable. As such, the offences which are punishable with imprisonment for less than three years under the NDPS Act must be treated as bailable in view of the Part II of the First Schedule of the BNSS except the offences which have been specifically made non- bailable irrespective of the quantum of punishment. In this regard, I would like to refer to the observations made by the Hon’ble Punjab and Haryana High Court in the case of Kuldeep Singh alias Keepa vs. State of Punjab in CRM-M-60671- 2024 and the relevant paragraphs Nos. 80, 81, 82 and 83 of the said judgment are reproduced as under : -

“80. In the absence of explicit legislative clarification, the only viable recourse available to 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