IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2429 of 2008 GOKHUL SAH Versus STATE OF BIHAR ----------- 3/ 15.5.2008 Heard. The petitioner was in custody in Shahpur (Bahoranpur) P.S. Case No. 207 of 2006 under sections 8 C and 20B of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act). The police submitted charge sheet without annexing therewith the report of the FSL or even mentioning therein as to why not the FSL report was submitted. The cognizance of the offences was taken. However, the learned Sessions Judge directed the release of the petitioner and other accused persons taking a view that in absence of the report of the FSL, it was very difficult to see that the seized substance was a narcotic substance or drug and as such, the further detention of the petitioner and other accused persons was not permissible. While directing the release of the petitioner and other accused persons, the learned Sessions Judge directed them to execute bail bonds of the value of rupees one lac each with two sureties of the - 2 - like amount each to his satisfaction. The petitioner approached this court in Cr. Revision No. 829 of 2007 and made a prayer for modification of the bond and accordingly his bond was modified and on furnishing of the same the petitioner was released from custody. Other set of two accused persons also filed a petition seeking quashing of the order of the learned Sessions Judge fixing the nature and amount of the sureties and the bond to be furnished by them for their release and that was placed before me. I took a view in the light of section 36-A (4) Proviso of the Act that the order of the learned Sessions Judge was patently illegal and he ought not to have released the accused persons and dismissed the petition. The learned Sessions Judge, on receipt of the order passed by me, cancelled the bonds of all the accused persons who had been released. The petitioner seeks quashing of that particular order by which the bond of the petitioner was cancelled. The contention is that the bail bonds of the petitioner ought not to have been cancelled without - 3 - affording an opportunity of hearing to him. Because I have taken a view which relates to a particular provision of the particular Act, it is necessary that I notice the provision which is section 36-A(4) of the Act. Before I do that, I may note that the recovery was of 15 Kg. of ganja leaves which, by all probabilities, is within the definition of commercial quantity. On perusal of the provision of section 36-A(4), one could gather that the detention of a person apprehended under the Act, could be up to 180 days if the quantity is commercial and the court which grants orders of remand, may extend the period of detention under section 167 of the Code of Criminal Procedure for a period of one year as well. The language of the provision vests discretionary power which could be obligatory upon the court in considering the nature of offence and its ultimate impact on the society as also on the economy of the nation. When the provision vests a discretionary power in the Special Judge to extend the period of custody up to one year, it was obligatory for the learned Sessions Judge, Bhojpur not to ignore the provision and he ought to have extended the - 4 - detention further with further direction to the police to obtain the report. These were the reasons which were occupying my mind and which will always occupy my mind in the present case to hold that the order of the learned Sessions Judge i.e. the Special Judge, Bhojpur was against the provision of the Act authorizing the detention of an accused under section 167 of the Code of Criminal Procedure. If the order was passed, if I am permitted to say, that was passed against the provision of law and it is completely a nullity and there was no requirement for the Sessions Judge to issue a show cause before canceling the bail bonds. The petition stands dismissed. Anil/ (Dharnidhar Jha, J)