Allahabad High Court
SHIVA TIVARI @ PARTH TIVARIversusSTATE OF U.P.
- Decided
Holding
The Court held that bail should be granted to the applicant under Section 483 of the Bharatiya Nagarik Suraksha Sanhita.
Summary
The High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, on behalf of Shiva Tivari, who was arrested in a narcotics case involving 56.268 kg of ganja seized from a vehicle. The applicant claimed innocence and argued that the mandatory provisions of Section 52‑A of the NDPS Act were not complied with because the seized samples were not taken as per the prescribed rules and were not certified by a Judicial Magistrate. The State opposed bail, contending that the statutory requirements of Sections 50, 52‑A of the NDPS Act and Section 105 of the BNS had been satisfied. Relying on Section 37 of the NDPS Act and the precedent set in Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798, the Court found the case suitable for bail without expressing a view on the merits. Consequently, the bail application was allowed subject to a personal bond and several conditions, with a warning that breach would lead to cancellation of bail.
Issues considered
- Whether non‑compliance with the sample‑taking provisions of Section 52‑A NDPS Act warrants denial of bail.
- Whether the presence of co‑accused on bail and the commercial quantity of narcotics affect the bail decision.
- Whether Section 483 of the Bharatiya Nagarik Suraksha Sanhita permits bail in a pending NDPS trial.
- Application of the principles laid down in Union of India v. Shiv Shanker Kesari to bail under the NDPS Act.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 105, 351, 483
- Narcotic Drugs and Psychotropic Substances Act — s. 20, 37, 50, 52-A, 8
Subjects
- bail
- NDPS Act
- Section 52-A
- sample compliance
- commercial quantity of ganja
- Section 37 NDPS
- high court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 1437 of 2026
Shiva Tivari @ Parth Tivari
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)
Counsel for Applicant(s) : Ashok Kumar Mishra, Sunit Kumar,
Yatish Kumar Dwivedi
Counsel for Opposite Party(s) : G.A.
Court No. - 69
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Shri Sunit Kumar, learned counsel for the applicant, and Shri
B.P. Singh, learned AGA for the State-respondents and perused the
record.
2. The present bail application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023, has been filed on behalf of applicant, with a
prayer to release him on bail in Case Crime No. 127 of 2025, under
Section 8/20 of Narcotic Drugs and Psychotropic Substances Act,
registered at Police Station Kadaura, District Jalaun, during pendency of
the trial.
3. It has been submitted by learned counsel for the applicant that the
applicant is innocent and has been falsely implicated in this case due to
ulterior motive. It is further submitted that 56.268 Kg of ganja is said to
have been recovered from a vehicle, in which, the applicant and co-
accused were found sitting inside the vehicle. It is further submitted that
co-accused Divyanshu Vyas and Ajay Kumar Pandey have already been
granted bail by the Co-ordinate Bench of this Court. It is further
submitted that the mandatory provisions of Section 52-A of N.D.P.S. Act
have not been complied with as the samples have not been taken in
accordance with the Rules 9,10 and 11 of the notification published by the
Union of India in the official gazette and the samples have not been
certified by the learned Judicial Magistrate. The applicant is languishing
in jail since 05.08.2025, undertakes that he will not misuse the liberty, if
BAIL No. 1437 of 2026
2
granted. It has also been pointed out that in the wake of heavy pendency
of cases in the Court, there is no likelihood of any early conclusion of
trial.
4. Per contra learned A.G.A. has opposed the prayer for bail of the
applicant and it has been submitted by him that the commercial quantity
of ganja is said to have been recovered from a vehicle, in which, the
applicant and Divyanshu Vyas were found inside the vehicle and the
mandatory provisions of Sections 50, 52-A of N.D.P.S. Act and Section
105 of BNSS have been complied with.
5. As per allegations in the first information report, 56.268 Kg of ganja is
said to have been recovered from a vehicle, in which, the applicant and
Divyanshu Vyas were found sitting inside the vehicle. Co-accused
Divyanshu Vyas and Ajay Kumar Pandey, who is said to be the owner of
the vehicle have already been granted bail by the Co-ordinate Bench of
this Court. It is further submitted that the mandatory provisions of Section
52-A of N.D.P.S. Act have not been complied with as the samples have
not been taken in accordance with the Rules 9,10 and 11 of the
notification published by the Union of India in the official gazette and the
samples have not been certified by the learned Judicial Magistrate. The
applicant is languishing in jail since 05.08.2025.
6. Upon considering the totality of facts, nature and the evidence reflected
from record and also taking into consideration the provision of Section 37
of N.D.P.S. Act and the law laid down in the case of Union of India vs
Shiv Shanker Kesari (2007) 7 SCC 798 without expressing any opinion
on merits of the case, I find it to be a fit case for bail. Hence, the present
bail application is allowed.
7. Let the applicant- Shiva Tivari @ Parth Tivari involved in the
aforesaid case crime shall be released on bail on his furnishing a personal
bond of Rs. 50,000/- with two sureties each in the like amount to the
satisfaction of the Court concerned :-
(i) The applicant 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
BAIL No. 1437 of 2026
3
officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution
witnesses.
(iii) The applicant shall remain present, in person, before the trial court on
the dates fixed for (i) opening of the case, (ii) framing of charge and (iii)
recording of statement under Section 351 of B.N.S.S.
(iv) The applicant shall file an undertaking to the effect that he shall not
seek any adjournment on the dates fixed for evidence when the witnesses
are present in the trial court.
(v) The applicant shall remain present before the trial court on each date
fixed, either personally or through his counsel.
8. In case of breach of any of the above conditions, it shall be a ground for
cancellation of bail.
9. It is clarified that anything said in this order is limited to the purpose of
determination of this bail application and will in no way be construed as
an expression on the merits of the case. The trial court shall be absolutely
free to arrive at its independent conclusions on the basis of evidence led
unaffected by anything said in this order.
(Jitendra Kumar Sinha,J.)
May 7, 2026
RKM
Digitally signed by :-
RAJESH KUMAR MAURYA
High Court of Judicature at Allahabad
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