Binod Kumar vs The Union Of India on 5 August, 2026

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    Patna High Court – Orders

    Binod Kumar vs The Union Of India on 5 August, 2026

    Author: Jitendra Kumar

    Bench: Jitendra Kumar

                          IN THE HIGH COURT OF JUDICATURE AT PATNA
                                     CRIMINAL MISCELLANEOUS No.53514 of 2026
                       Arising Out of PS. Case No.-5 Year-2023 Thana- N.C.B (GOVERNMENT OFFICIAL)
                                                     District- East Champaran
                     ======================================================
                     Binod Kumar, S/o Mosafir Prasad, R/o Village- Dulma Badabakad, Ward No.
                     9, Chaita, P.S- Madhubani, District- East Champaran.
                                                                                ... ... Petitioner
                                                         Versus
                     The Union of India
                                                                          ... ... Opposite Party
                     ======================================================
                     Appearance :
                     For the Petitioner       :     Mr. Dhiraj Kumar, Advocate
                                                    Mr. Rajesh Kumar, Advocate
                     For the UOI              :     None.
                     For the State            :     Mr. Upendra Kumar, APP
                     ======================================================
                     CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
                                           ORAL ORDER
    
    2   05-08-2026

    Heard learned counsel for the petitioner and learned

    APP for the State.

    SPONSORED

    2. The present petition has been filed on behalf of the

    petitioner under Section 482 of the B.N.S.S. for anticipatory bail

    apprehending his arrest, in connection with N.C.B Case No.

    PZU/V/05/2023, dated 18.03.2023, registered for the offences

    punishable under Sections 18(b), 23, 25 and 29 of N.D.P.S. Act,

    1985. Similar application filed by the Petitioner has been

    rejected by learned Court of Sessions vide order dated

    08.06.2026, passed in A.B.P. No.1352 of 2026.

    3. The prosecution case in nutshell is that one Kg

    opium was recovered from a motorcycle being driven by the co-

    accused, Chandan Kumar with another co-accused,

    Ramprawesh Yadav as a pillion rider. As per the statement under
    Patna High Court CR. MISC. No.53514 of 2026(2) dt.05-08-2026
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    Section 67 of the N.D.P.S. Act, the co-accused, Nanhak Mahato

    had given the seized contraband to them to deliver it to the co-

    accused, Binod Kumar, who is the Petitioner herein.

    4. Learned counsel for the petitioner submits that the

    petitioner is innocent and has falsely been implicated in this

    case on account of inadmissible material which can not be

    converted into evidence during the trial. Explaining his

    submission, he further submits that the whole case against the

    Petitioner is based on the confessional statement of the co-

    accused as recorded under Section 67 of the NDPS Act which is

    not legally admissible and cannot be converted into evidence

    during the trial of the petitioner.

    5. It is also stated in paragraph no. 2 of the bail

    petition that the petitioner has never moved this Court for either

    for anticipatory bail or regular one.

    6. Nobody is present on behalf of the Union of India.

    Though learned APP for the State is present and vehemently

    opposes the prayer of the petitioner for bail submitting that the

    alleged offence is serious in nature and his name has transpired

    in the confessional statement of the co-accused as recorded

    under Section 67 of the NDPS Act. He also refers to and relies

    upon Section 30 of the Evidence Act equivalent to Section 24 of
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    the Bharatiya Sakshya Adhiniyam, 2023, to submit that

    confessional statement of co-accused is relevant and admissible

    against the accused/Petitioner.

    7. I considered the submission advanced by both the

    parties and perused the material on record.

    8. I find that the whole case of the prosecution is

    based on confessional statement of co-accused as recorded

    under Section 67 of the NDPS Act.

    9. Here it would be pertinent to refer to Tofan Singh

    Vs. State of T.N. 2021 (4) SCC 1 wherein Hon’ble Supreme

    Court has clearly held that the confessional statement of the

    accused as recorded under Section 67 of the NDPS Act is not

    admissible. Here it has been explained that the powers conferred

    on the empowered officers under Section 41 and 42 of the

    NDPS Act 1985 read with Section 67 of the NDPS Act 1985 are

    limited in nature conferred for the purpose of entry, search,

    seizure and arrest without warrant along with safeguards

    enlisted thereof. The “enquiry” undertaken under the aforesaid

    provisions may lead to initiation of an investigation or enquiry

    by the officers empowered to do so either under Section 53 of

    the NDPS Act 1985 or otherwise. Thus, the officers who are

    invested with powers under Section 53 of the NDPS Act are
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    “police officers” within the meaning of Section 25 of the

    Evidence Act, as a result of which any confessional statement

    made to them would be barred under the provisions of Section

    25 of the Evidence Act, and cannot be taken into account in

    order to convict an accused under the NDPS Act.

    10. In recent judgement of Najmunisha v. State of

    Gujarat, 2024 SCC OnLine SC 520, AIRONLINE 2024 SC

    306, Hon’ble Supreme Court has again held, relying upon Tofan

    Singh Case (supra) that a statement recorded under Section 67

    of the NDPS Act cannot be considered to convict an accused

    person under the NDPS Act 1985.

    11. Here it would be also pertinent to refer to

    Dipakbhai J. Patel Vs. State of Gujrat, (2021) 16 SCC 547.

    Though this judgment has been delivered by Hon’ble Supreme

    Court in the context of framing of charge, the observation made

    herein is relevant even in the present context. Here, Hon’ble

    Apex Court has held that the material on the basis of which

    charge could be framed must be such material which could be

    translated into evidence during the trial. The relevant part of the

    judgment reads as follows:

    “23. At the stage of framing the charge in accordance with
    the principles which have been laid down by this Court,
    what the court is expected to do is, it does not act as a
    mere post office. The court must indeed sift the material
    before it. The material to be sifted would be the material
    Patna High Court CR. MISC. No.53514 of 2026(2) dt.05-08-2026
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    which is produced and relied upon by the prosecution. The
    sifting is not to be meticulous in the sense that the court
    dons the mantle of the trial Judge hearing arguments after
    the entire evidence has been adduced after a full-fledged
    trial and the question is not whether the prosecution has
    made out the case for the conviction of the accused. All
    that is required is, the court must be satisfied that with the
    materials available, a case is made out for the accused to
    stand trial. A strong suspicion suffices. However, a strong
    suspicion must be founded on some material. The material
    must be such as can be translated into evidence at the
    stage of trial. The strong suspicion cannot be the pure
    subjective satisfaction based on the moral notions of the
    Judge that here is a case where it is possible that the
    accused has committed the offence. Strong suspicion must
    be the suspicion which is premised on some material
    which commends itself to the court as sufficient to
    entertain the prima facie view that the accused has
    committed the offence.”

    (Emphasis supplied)

    12. Similar view has been expressed by Hon’ble

    Supreme Court in Karan Talwar Vs. The State of Tamilnadu

    (2024) SCC Online SC 3803, holding as follows relying upon

    Dipakbhai J. Patel case (supra) :

    “10. …………………….There is absolutely no
    case that any recovery of contraband was recovered from
    the appellant. As regards the confession statement of the
    appellant in view of Section 25 of the Indian Evidence
    Act, 1872 there can be no doubt with respect to the fact
    that it is inadmissible in evidence. In this context it is
    worthy to refer to the decision of this Court in Ram Singh
    v. Central Bureau of Narcotics
    , (2011) 11 SCC 347. In
    the said decision, this Court held that Section 25 of the
    Indian Evidence Act would make confessional statement
    of accused before police inadmissible in evidence and it
    could not be brought on record by prosecution to obtain
    conviction. Shortly stated, except the confessional
    statement of co-accused No. 1 there is absolutely no
    material available on record against the appellant.
    ………………………………………………………….

    12. As noted hereinbefore, the sole material
    Patna High Court CR. MISC. No.53514 of 2026(2) dt.05-08-2026
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    available against the appellant is the confession statement
    of the co-accused viz., accused No. 1, which undoubtedly
    cannot translate into admissible evidence at the stage of
    trial and against the appellant. When that be the position,
    how can it be said that a prima facie case is made out to
    make the appellant to stand the trial. There can be no
    doubt with respect to the position that standing the trial is
    an ordeal and, therefore, in a case where there is no
    material at all which could be translated into evidence at
    the trial stage it would be a miscarriage of justice to make
    the person concerned to stand the trial.”

    (Emphasis supplied)

    13. Even reference to and reliance of learned APP

    upon Section 30 of the Evidence Act does not help the

    prosecution. A careful reading of Section 30 shows that even as per

    Section 30, only legally admissible confession of the co-accused is

    relevant and admissible against the accused, because the condition

    precedent for making the confessional statement of the co-accused

    relevant against accused is that there should be not only a joint trial

    of the accused along with the co-accused, even the confessional

    statement should be such which could be proved in the trial. Needless

    to say that inadmissible confession cannot be proved during the trial.

    As such, confession as referred to in Section 30 of the Evidence Act

    means only admissible confession and not such confession which is

    hit by Section 25 of the Evidence Act.

    14. In view of the aforesaid facts and circumstances, I

    find that the prosecution case against the petitioner is based only

    on inadmissible material which could not be translated into

    evidence against the accused/petitioner during his trial. Hence, it
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    would be travesty of justice to curtail the liberty of the

    accused/petitioner under such facts and circumstances.

    15. Accordingly, this application is allowed,

    directing the petitioner, above-named, to be enlarged on bail on

    his furnishing bail bonds in the sum of Rs. 10,000 /- (Ten

    Thousand) with two sureties of the like amount each to the

    satisfaction of learned Exclusive Special Judge, Court No.II,

    N.D.P.S., East Champaran, Motihari, in connection with N.C.B

    Case No. PZU/V/05/2023, on the following conditions:

    (i) The petitioner will make himself available for

    interrogation by a police officer/court as and when required.

    (ii) The petitioner will undertake that

    investigation/trial will not get hampered on account of his

    absence or non-cooperation. He must be available to the police

    or the court whenever his presence is required.

    (iii) The petitioner shall not, directly or indirectly

    make any inducement, threat or promise to any person

    acquainted with the facts of the case so as to dissuade him from

    disclosing such facts to the court or to any police officer.

    (iv) In case, it is brought to the notice of the court

    below that the petitioner has criminal antecedents other than the

    disclosed one, learned court below shall cancel the bail bonds of
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    the petitioner after hearing him and getting satisfied that the

    petitioner has concealed his criminal antecedents despite his

    knowledge of the same.

    (v) In case, it is brought to the notice of the court

    below that statement regarding previous bail petition is wrong,

    learned court below shall cancel the bail bonds of the petitioner.

    (Jitendra Kumar, J.)
    Chandan/-

    U     T
     



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