Allahabad High Court
SHYAM SHIVHAREversusSTATE OF U.P.
- Decided
Holding
The court held that bail should be granted to the applicant under Section 483 of the BNSS.
Summary
The High Court of Allahabad considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, on behalf of Shyam Shivhare, who is accused in an NDPS case for alleged possession of 81 kg of ganja recovered from a car. The applicant argued that he was falsely implicated, that the recovery was not from his conscious possession, and that mandatory provisions of Section 105 BNSS (e‑sakshya) were not complied with; the State contended that the contraband constituted a commercial quantity and that all statutory requirements were met. The court noted that the co‑accused had already been granted bail and that the applicant’s role was not distinguishable from the co‑accused. Relying on Section 37 of the NDPS Act and the precedent set in Union of India v. Shiv Shanker Kesari (2007), the court, without expressing an opinion on the merits, found the case fit for bail. Accordingly, the bail application was allowed subject to a personal bond and several conditions.
Issues considered
- Whether bail can be granted under Section 483 of the BNSS when the alleged recovery involves a commercial quantity of narcotics.
- Whether the mandatory provisions of Section 105 of the BNSS (e‑sakshya requirement) have been complied with.
- Whether the applicant’s role is distinguishable from that of the co‑accused who has already been granted bail.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita — s. 105, 351, 483
- Narcotic Drugs and Psychotropic Substances Act — s. 29/60, 37, 50, 52-A, 8/20
Subjects
- bail
- NDPS Act
- commercial quantity
- e‑sakshya
- Section 105 BNSS
- Section 37 NDPS
- presumption of innocence
- high court
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 2557 of 2026
Shyam Shivhare
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)
Counsel for Applicant(s) : Ajay Sengar
Counsel for Opposite Party(s) : G.A.
Court No. - 69
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Ms. Gunjan Yadav, holding brief of Shri Ajay Sengar, learned
counsel for the applicant, and Shri B.P. Maurya, 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. 748 of 2025, under
Section 8/20, 29/60 of Narcotic Drugs and Psychotropic Substances Act,
registered at Police Station Kotwali Orai, 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 co-accused Ankur @ Pawan
Shivhare has already been granted bail by this Court vide order dated
03.04.2026 passed in Criminal Misc. Bail Application No.2004 of 2026.
It is further submitted that the role of the applicant is not distinguishable
from the role of the co-accused Ankur @ Pawan Shivhare. It is further
submitted that as per first information report, 81 Kg of ganja is said to
have been recovered from the joint possession of the applicant and co-
accused person, who were travelling in a car and third person is said to
have been fled away. It is further submitted that the alleged recovery has
been made from the diggy of the car and the same has not been recovered
from the conscious possession of the applicant. It is further submitted that
the mandatory provisions of Section 105 of BNSS have not been
BAIL No. 2557 of 2026
2
complied with as the videography of the alleged recovery has been made
on the mobile phone and not e sakshya app. The applicant is languishing
in jail since 30.12.2025, undertakes that he will not misuse the liberty, if
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 alleged recovery has
been made from the diggy of the car, in which, the applicant and co-
accused were found setting and the recovered contraband comes within
the purview of commercial quantity and the mandatory provisions of
Sections 50 and 52-A of N.D.P.S. Act and Section 105 of BNSS have
been complied with.
5. Co-accused Ankur @ Pawan Shivhare has already been granted bail by
this Court vide order dated 03.04.2026 passed in Criminal Misc. Bail
Application No.2004 of 2026. It is further submitted that the role of the
applicant is not distinguishable from the role of the co-accused Ankur @
Pawan Shivhare. As per first information report, 81 Kg of ganja is said to
have been recovered from the joint possession of the applicant and co-
accused person, who were travelling in a car and third person is said to
have fled away. It is further submitted that the alleged recovery has been
made from the diggy of the car and the same has not been recovered from
the conscious possession of the applicant. It is further submitted that the
mandatory provisions of Section 105 of BNSS have not been complied
with as the videography of the alleged recovery has been made on the
mobile phone and not e sakshya app. The applicant is languishing in jail
since 30.12.2025.
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.
BAIL No. 2557 of 2026
3
7. Let the applicant- Shyam Shivhare 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
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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