BHUPENDRA SINGHversusSTATE OF U.P. THOUGH IT PRINCIPAL SECRETARY (HOME) AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 17345 of 2025

Bhupendra Singh
                                                               .....Applicant(s)
                                     Versus

State Of U.P. Though It Principal Secretary
(Home) And Another                                                 .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)                      :   Atul Kumar
Counsel for Opposite Party(s)                 :   Ashish Pandey, G.A.

Court No. - 68
                 HON'BLE ASHUTOSH SRIVASTAVA, J.

Heard learned counsel for the applicant, Sri Ashish Pandey, learned counsel
for the NCB and perused the record.

This is a third bail application filed by the applicant. The first bail
application filed by the present applicant was rejected by the Co-ordinate
Bench of this Court vide order dated 13.08.2024 passed in Criminal Misc.
Bail Application No. 57693 of 2022, copy whereof has been brought on
record as Annexure No. 7 to the bail application. The second bail application
filed by the present applicant was dismissed for want of prosecution by the
Co-ordinate Bench of this Court vide order dated 21.09.2022, copy whereof
has been brought on record as Annexure No. 6 to the bail application.

The applicant has filed this third bail application with a prayer to enlarge
him on bail in Case Crime No. 10 of 2020, under Sections 8, 18, 29, 69(3)
of NDPS Act, Police Station Thariaon, District Fatehpur, during the
pendency of the trial.

In support of this third bail application, learned counsel for the applicant has
reiterated the entire submissions made in the first bail application, which are
not necessary to mention herein again by this Court.

Apart from the above, learned counsel for the applicant submits that in the
present case charge sheet has been filed by the Investigating Officer against
the applicant and the Court concerned has also taken cognizance. He further
submits that the trial of the case is proceeding at snail's pace as such there is
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no possibility of conclusion of trial in near future. Learned counsel for the
applicant has invited the attention of the court to the order sheet of the
proceedings to demonstrate that the trial is being delayed at the instance of
the witnesses who have not been appearing on the dates fixed even though
the applicant is being produced from the jail. Learned counsel for the
applicant further submits that the applicant is languishing in jail since
28.04.2020 and therefore, submits that on the above grounds, the applicant is
liable to be enlarged on bail.

Learned counsel for the applicant argued that the accused-applicant is
innocent and he has been falsely implicated in this case crime number. The
applicant is languishing in jail since 28.04.2020. He submits that the
applicant has no criminal antecedent to his credit and there is no likelihood
of his fleeing from course of justice or tampering with evidence in case of
release on bail. Hence, the bail has been prayed for.

Learned AGA submits that 60 Kg of Opium is alleged to be recovered from
the truck of the applicant, which is more than the commercial quantity,
therefore, the bail application is liable to be rejected. In case the applicant is
enlarged on bail he will again indulge in similar activities as such no relief
can be granted to him.

I have considered the rival submissions advanced by learned counsel for the
parties and perused the material available on record.

This court has considered the recent case of Union of India Vs Md. Nawaz
Khan, reported in, AIR 2021 SC 447, which is a case where contraband was
concealed in a bag and it was held by Supreme Court that factum of absence
of possession of contraband by the accused in itself cannot be sole ground
for grant of bail. In Paragraph Nos. 20 & 29, it has been said as under:-


"20. Based on the above precedent, the test which the High Court and this Court are
required to apply while granting bail is whether there are reasonable grounds to
believe that the accused has not committed an offence and whether he is likely to
commit any offence while on bail. Given the seriousness of offences punishable under
the NDPS Act and in order to curb the menace of drug-trafficking in the country,
stringent parameters for the grant of bail under the NDPS Act have been prescribed.
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29. In the complaint that was filed on 16 October 2019 it is alleged that at about 1400
hours on 26 March 2019, information was received that between 1500-1700 hours on
the same day, the three accused persons would be reaching Uttar Pradesh. The
complaint states that the information was immediately reduced to writing. Therefore,
the contention that Section 42 of the NDPS Act was not complied with is prima facie
misplaced. The question is one that should be raised in the course of the trial."


The Hon'ble Apex Court further in the case of Md. Nawaz Khan (supra) in
Paragraph Nos. 24 & 25 has also stated as under:


"24. As regards the finding of the High Court regarding absence of recovery of the
contraband from the possession of the respondent, we note that in Union of India vs.
Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and
reversed the finding of the High Court, which had held that as the contraband (heroin)
was recovered from a specially made cavity above the cabin of a truck, no contraband
was found in the 'possession' of the accused. The Court observed that merely making a
finding on the possession of the contraband did not fulfil the parameters of Section 37
(1)(b) and there was non- application of mind by the High Court.

25. In line with the decision of this Court in Rattan Mallik (supra), we are of the view
that a finding of the absence of possession of the contraband on the person of the
respondent by the High Court in the impugned order does not absolve it of the level of
scrutiny required under Section 37(1)(b)(ii) of the NDPS Act."


It is further asserted by the Hon'ble Supreme Court vide Para 25, referred to
above, that finding of the absence of possession of the contraband on the
person of the accused does not absolve him of the level of scrutiny required
under Section 37 (1)(b)(ii) of the NDPS Act.


Learned counsel for the accused has not been able to point out anything to
this Court so as to come to conclusion that the accused is not guilty of the
offence. The fact that accused was not in physical possession of contraband
would not be enough to conclude that accused is not guilty. The contention
that recovery was not from conscious possession of the accused is noted to
be rejected in view of recent decision of Supreme Court in Md. Nawaz
Khan's case (supra).
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In the case of State vs. Syed Amir Hasnain, (2002) 10 SCC 88, the Hon'ble
Apex Court has held in view of the two judgments of this Court in Union of
India Vs Ram Samujh, (1999) 9 SCC 382 and Union of India Vs Aharwa
Deen, (2000) 9 SCC 382, even the High Court would be bound by the
provisions of Section 37 of the NDPS Act and would not be entitled to
release the accused under the provisions of the NDPS Act unless the
provisions of Section 37 of the Act are satisfied.

In Narcotics Control Bureau v. Mohit Aggarwal [(2022) 18 SCC 374],
the three Judge Bench of the Hon'ble Supreme Court held that

"length of the period of custody or that the charge-sheet had been filed or even that the
trial has not commenced by themselves are not considerations that can be treated as
persuasive grounds to grant bail under Section 37 of the NDPS Act."

So far as the contention of learned counsel for the applicant that the arresting
officials did not comply with the mandatory provisions of search and seizure
of narcotics substance as per the provisions of the NDPS Act is concerned,
the Apex Court in Criminal Appeal No. 5544 of 2024 (Special Leave
Petition (Crl.) No. 12120 of 2024) Narcotics Control Bureau versus
Kasif, decided on 20.12.2024 has held that sub-section (2) of Section 52A
lays down the procedure as contemplated in sub-section (1) thereof, and any
lapse or delayed compliance thereof would be merely a procedural
irregularity which would neither entitle the accused to be released on bail
nor would vitiate the trial on that ground alone.

The Apex Court recently in the case of Bharat Ambale versus State of
Chattisgarh, reported in [2025 INSC 78] while dealing with the plea that
conviction stood vitiated on account of non compliance of Section 52A of
the NDPS Act in Para 50 of its judgment has held as under:-

"50.We summarize our final conclusion as under: -

(I) Although Section 52A is primarily for the disposal and destruction of seized
contraband in a safe manner yet it extends beyond the immediate context of drug
disposal, as it serves a broader purpose of also introducing procedural safeguards in
the treatment of narcotics substance after seizure inasmuch as it provides for the
preparation of inventories, taking of photographs of the seized substances and drawing
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samples therefrom in the presence and with the certification of a magistrate. Mere
drawing of samples in presence of a gazetted officer would not constitute sufficient
compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.

(II) Although, there is no mandate that the drawing of samples from the seized
substance must take place at the time of seizure as held in Mohanlal (supra), yet we
are of the opinion that the process of inventorying, photographing and drawing
samples of the seized substance shall as far as possible, take place in the presence of
the accused, though the same may not be done at the very spot of seizure.


(III) Any inventory, photographs or samples of seized substance prepared in
substantial compliance of the procedure prescribed under Section 52A of the NDPS
Act and the Rules / Standing Order(s) thereunder would have to be mandatorily
treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act,
irrespective of whether the substance in original is actually produced before the court
or not.

(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section
52A of the NDPS Act is only intended to guide the officers and to see that a fair
procedure is adopted by the officer in-charge of the investigation, and as such what is
required is substantial compliance of the procedure laid therein.


(V) Mere non-compliance of the procedure under Section 52A or the Standing
Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies
in the physical evidence rendering the prosecution's case doubtful, which may not
have been there had such compliance been done. Courts should take a holistic and
cumulative view of the discrepancies that may exist in the evidence adduced by the
prosecution and appreciate the same more carefully keeping in mind the procedural
lapses.


(VI) If the other material on record adduced by the prosecution, oral or documentary
inspires confidence and satisfies the court as regards the recovery as-well as conscious
possession of the contraband from the accused persons, then even in such cases, the
courts can without hesitation proceed to hold the accused guilty notwithstanding any
procedural defect in terms of Section 52A of the NDPS Act.


(VII) Non-compliance or delayed compliance of the said provision or rules thereunder
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may lead the court to drawing an adverse inference against the prosecution, however
no hard and fast rule can be laid down as to when such inference may be drawn, and it
would all depend on the peculiar facts and circumstances of each case.


(VIII) Where there has been lapse on the part of the police in either following the
procedure laid down in Section 52A of the NDPS Act or the prosecution in proving
the same, it will not be appropriate for the court to resort to the statutory presumption
of commission of an offence from the possession of illicit material under Section 54 of
the NDPS Act, unless the court is otherwise satisfied as regards the seizure or
recovery of such material from the accused persons from the other material on record.


(IX) The initial burden will lie on the accused to first lay the foundational facts to
show that there was non-compliance of Section 52A, either by leading evidence of its
own or by relying upon the evidence of the prosecution, and the standard required
would only be preponderance of probabilities.


(X) Once the foundational facts laid indicate non-compliance of Section 52A of the
NDPS Act, the onus would thereafter be on the prosecution to prove by cogent
evidence that either (i) there was substantial compliance with the mandate of Section
52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not
affect its case against the accused, and the standard of proof required would be beyond
a reasonable doubt."


In the case at hand, commercial quantity of contraband was recovered during
interception and applicant along with co-accused were arrested from the
spot. There is every likelihood that the applicant shall indulge in similar
crime, if enlarged on bail.

In the light of the facts and circumstances of the present case, it would be
inappropriate to discuss the evidence in depth at this stage because it is
likely to influence the trial of the accused. But, from the perusal of the
evidences, collected during investigation so far, prima facie, the involvement
of the accused in the present case cannot be ruled out. No reason is found to
falsely implicate the applicant/accused. Therefore, there is no good ground
to release the applicant-accused on bail at this stage. All the contentions
raised by the learned counsel for the applicant pertain to the merits of the
case and the same cannot be considered while considering application for
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                                    grant of bail. This court is unable to form an opinion at this stage that the
                                    accused has not committed an offence.


                                    In the ultimate conclusion, considering the facts and circumstances of the
                                    case, gravity of the offence, severity of punishment, in my opinion, no case
                                    for bail is made out. Accordingly, the bail application is hereby rejected.


                                    It is clarified that the observations made regarding the bail application is
                                    limited to the decision of the bail application and any observations made
                                    herein shall not effect the trial of the case.

                                    February 24, 2026
                                    pks

                                                                                        (Ashutosh Srivastava,J.)




Digitally signed by :-
PAWAN KUMAR SINGH
High Court of Judicature at Allahabad