Patna High Court – Orders
Rakesh Kumar vs The State Of Bihar on 25 February, 2026
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3564 of 2022
Arising Out of PS. Case No.-1 Year-2019 Thana- GOVERNMENT OFFICIAL COMP.
District- Purnia
======================================================
1. RAKESH KUMAR S/O PRABHU PRASAD Resident of village- Ashok
Nagar Changer Road No.- 8A P.S.- Kankarbagh, District- Patna.
2. AKASH KUMAR S/O JAIRAM Resident of village- Maksudpur P.S.-
Fatuha, District- Patna.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellants : Ms. Usha Kumari Singh, Advocate
For the Respondent : Mr. Bal Mukund Prasad Sinha, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL ORDER
25 25-02-2026
Re:- I.A. No. 03 of 2025.
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State on I.A. No. 03 of 2025
which has been filed by the appellants for suspension of sentence
and grant of bail.
2. The appellants have been convicted by the judgment
of conviction dated 18.07.2022 passed by learned Sessions
Judge-cum-Special Judge (NDPS) Act, Purnea, in Special
(NDPS) No. 08 of 2019 (arising out of P.R. No. 01/2018-19,
Special Case No. 08/2019/CIS No. 08/2019), whereby and
whereunder the appellants have been convicted for the offence
punishable under Section 20(b)(ii)(c) of the NDPS Act and
Patna High Court CR. APP (SJ) No.3564 of 2022(25) dt.25-02-2026
2/7
accordingly, vide order of sentence dated 25.07.2022, appellants
have been sentenced to undergo RI for 10 years and fine of Rs.
1,00,000/- each under the said section and in case of default of
payment of fine, both the appellants shall further undergo SI for
one month separately.
3. As per prosecution case, 116 KG ganja is said to
have been recovered from the Honda City car in question.
Appellant No. 1 was driving the car and appellant no. 2 was
seated inside the car and both were apprehended on spot.
4. Learned counsel for the appellants submits that
prayer for suspension of sentence and grant of bail of the
appellants has already been rejected on two occasions, i.e. on
06.04.2023 and on 13.09.2024, with an observation on
13.09.2024 that the appellants may renew their prayer for bail
after six months, if the appeal is not taken up for hearing. He
further submits that the appellants are in custody since the date
of registration of the F.I.R., i.e. 01.02.2019. He further submits
that since the last date of rejection of prayer for suspension of
sentence and grant of bail of the appellants, more than one year
and five months has already elapsed and the appeal has not
taken up for hearing. He further submits that the appellants have
suffered more than seven years in jail custody and the
Patna High Court CR. APP (SJ) No.3564 of 2022(25) dt.25-02-2026
3/7
prosecution has failed to prove its case beyond reasonable doubt
because there is a complete violation of procedures prescribed
under Sections 42, 52(A), 55 and 57 of NDPS Act and there are
contradictions and discrepancies in the deposition of the
witnesses which are fatal to the prosecution story. He further
submits that out of ten years of sentence awarded to appellants,
they have suffered more than seven years in jail custody which
is the substantial part of the substantive sentence awarded to
appellants and the appeal is not likely to be taken up in near
future.
5. Learned counsel for the appellants has relied upon
the judgment passed by the Hon’ble Supreme Court in the case
of Narcotic Control Bureau Vs. Lakhwinder Singh (Cr.
Appeal No.(S). 475 of 2025 arising out of S.L.P. (Criminal)
No(S). 5215/2021) in which at para 6 and 7 it has been held as
under:-
6. In the case of fixed-term
sentences, if the Courts start adopting a
rigid approach, in a large number of cases,
till the appeal reaches the stage of the final
hearing, the accused would undergo the
entire sentence. This will be a violation of
the rights of the accused under Article 21 of
the Constitution. Moreover, it will defeat the
Patna High Court CR. APP (SJ) No.3564 of 2022(25) dt.25-02-2026
4/7
right of appeal.
7. At this stage, the learned ASG
appearing for the petitioner submitted that
the power of the Court was constrained by
Section 37 of the NDPS Act, which is
applicable even at the stage of an appeal. He
relies upon a decision of this Court in the
case of Dadu vs. State of Maharashtra‘.
There is no dispute about the fact that the
Appellate Court is bound by constraints of
Section 37 of the NDPS Act while
considering the prayer for the grant of bail
during the pendency of an appeal. However,
if, in the facts of the case, an accused has
undergone a substantial part of the
substantive sentence and, considering the
pendency of criminal appeals, his appeal is
not likely to be heard before the accused
undergoes the entire sentence, the Appellate
Court can exercise the power of releasing
the accused on bail pending the appeal. If
the relief of bail is denied in such a factual
situation only on the grounds of Section-37
of the NDPS Act, it will amount to the
violation of the rights of the accused under
Article 21 of the Constitution of India.”
6. Learned A.P.P. for the State has vehemently
opposed the prayer for suspension of sentence and grant of bail
Patna High Court CR. APP (SJ) No.3564 of 2022(25) dt.25-02-2026
5/7
to the appellants and submitted that the prayer for suspension of
sentence and grant of bail to the appellants has already been
rejected on merit on two occasions and any discrepancies of the
merits of the case cannot be discussed at this juncture while
granting relief of suspension of sentence and grant of bail to the
appellants. He further submits that there is no dispute about the
fact that the appellate court is bound by the constraint of Section
37 of the N.D.P.S. Act while considering the prayer for
suspension of sentence and grant of bail during the pendency of
the appeal.
7. In the light of the facts and circumstances of the
case, the appellants have already undergone the substantial part
of substantive sentence as has already been submitted by the
learned counsel for the appellants.
8. Having heard the learned counsel for the parties
and having cursorily perused the evidence on record, I find that
the prayer for suspension of sentence of the appellants and grant
of bail to them has already been rejected on two occasions, i.e.
on 06.04.2023 and 13.09.2024, with an observation on
13.09.2024 that the appellants may renew their prayer for bail
after six months, if the appeal is not taken up for hearing and,
as per the submission made by the learned counsel for the
Patna High Court CR. APP (SJ) No.3564 of 2022(25) dt.25-02-2026
6/7
appellants, appeal is not likely to be taken up in near future and
the appellants have already suffered more than seven years in
jail custody and in catena of judgments the Hon’ble Supreme
Court has held that if substantial part of the substantive sentence
has been undergone by the appellant, in such a situation, if
appeal is not taken up in near future, the appellate court can
suspend the sentence and consider the prayer for bail of the
appellant which is pending.
9. Considering the facts and circumstances of the
case as well as period already undergone by the appellants in jail
custody, which is more than seven years, and the appeal is not
likely to be taken up in near future, the appellants have made
out a case for suspension of sentence and grant of bail to them
during the pendency of the appeal.
10. Accordingly, let the appellants above-named be
enlarged on bail during the pendency of the appeal 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, Purnea in Special (NDPS)
Case no. 08 of 2019, CIS No. 08 of 2019 (arising out of P.R. No.
01/2018-19).
11. Sentence of the appellants is suspended and
Patna High Court CR. APP (SJ) No.3564 of 2022(25) dt.25-02-2026
7/7
realization of fine shall also remain stayed during the pendency
of the appeal.
12. It is clarified that all the opinions are tentative in
nature for consideration of prayer of suspension of sentence and
grant of bail only and the same shall not cause any prejudice to
either of the parties at the time of hearing of the appeal.
13. The appellants are directed to co-operate this
Court in disposal of the appeal.
14. I.A. No.03/2025 stands disposed of.
15. Put up the appeal under appropriate heading in
due course.
(Alok Kumar Pandey, J)
alok/-
U T
