Allahabad High Court

DEEPAKversusSTATE OF U.P.

Decided: 26 February 2026
Bench: ASHUTOSH SRIVASTAVA

Holding

The court denied bail, holding that the applicant's alleged procedural challenges do not outweigh the seriousness of the offence and the presence of contraband in conscious possession.

Summary

The Allahabad High Court considered a second bail application filed by Deepak under Sections 21 and 22 of the Bharatiya Nyaya Sanhita, 2023 in a case where 500 grams of Alprazolam, a commercial quantity, was recovered from his conscious possession under the NDPS Act. The applicant argued procedural irregularities, including the alleged absence of his signature on the recovery memo and a purported mix‑up of the forensic laboratory report. The State contended that the recovery was lawful, the required Section 105 compliance was met, and the contraband was indeed Alprazolam. Relying on Supreme Court precedents that the absence of physical possession does not preclude bail denial and that procedural lapses under Section 52A are not fatal unless they create doubt, the Court held that the applicant posed a risk of re‑offending and that the gravity of the offence warranted denial of bail. Consequently, the second bail application was rejected.

Issues considered

Whether bail can be granted under Sections 21/22 of the Bharatiya Nyaya Sanhita in an NDPS case involving commercial quantity of contraband.
Whether the alleged procedural irregularities (absence of applicant's signature on recovery memo, alleged mis‑filing of FSL report) affect the validity of the seizure and bail eligibility.
Whether the presence of contraband in conscious possession and the seriousness of the offence satisfy the criteria of Section 37(1)(b)(ii) of the NDPS Act to deny bail.

Legislation cited

Bharatiya Nyaya Sanhita, 2023 — s. 21, 22
Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 105, 37(1)(b)(ii), 50, 52A, 54

Subjects

bail
NDPS Act
drug trafficking
commercial quantity
possession
procedural compliance
Section 37
Section 52A
court precedent

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 2902 of 2026

Deepak
.....Applicant(s)
Versus

State of U.P.
.....Opposite
Party(s)

Counsel for Applicant(s) : Disha Srivastava, Hari Krishna Singh,
Sr. Advocate
Counsel for Opposite Party(s) : G.A.

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

Heard Shri D. K. Srivastava, learned Senior Counsel assisted by Ms. Disha
Srivastava, learned counsel for the applicant, Shri Vijendra Kumar, learned
AGA for the State and perused the entire material available on record.

This is the second bail application filed by the applicant. The first bail
application filed by the present applicant has been rejected by this Court by
means of a detailed order dated 3.3.2025 passed in Criminal Misc. Bail
Application No. 39678 of 2024, a copy of which has been brought on record
as Annexure-1 to the bail application.

The applicant Deepak, has filed this second bail application with a prayer to
enlarge him on bail in Case Crime No. 890 of 2024, under Sections 21/22 of
the Bharatiya Nyaya Sanhita, 2023, Police Station Highway, District
Mathura, during the pendency of the trial before the Court below.

In support of this second bail application, learned Senior 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 Senior Counsel for the applicant submits that
charge sheet in this case was filed on 18.11.2024 and charges against the
applicant were framed on 1.5.2025. Learned Senior Counsel submits that in
the Trial Court only dates are being fixed for prosecution evidence. The case
of the applicant is proceeding at a snail's pace. There are 08 witnesses as per
BAIL No. 2902 of 2026
2

the charge sheet and all are the Police personnel. Till date none of the
prosecution witnesses have been examined so far. The applicant is
languishing in jail since 12.9.2024. The applicant has criminal history of
four other cases, which have been duly explained. No other case is under the
NDPS Act.

Learned Senior Counsel further submits that applicant has been falsely
implicated in this case because FSL report of some other case i.e. State
versus Goverdhan @ Guddu has been annexed with the case of present
applicant as no applicant in the name of Goverdhan @ Guddu has been
arrayed as accused in the present case. The Parcha No. 7 of the case diary
dated 18.11.2024 containing the extracts of the FSL report has been brought
on record to substantiate the submission.

Learned Senior Counsel further submits that on the recovery memo, the
investigating officer has not obtained the signature of the applicant and only
the signature of co-accused Chand Babu exists which is a gross illegality
entitling the applicant to bail.

Shri Vijendra Kumar, learned AGA has vehemently opposed the prayer for
bail.

Learned AGA from the case diary points out that perusal of letter No. 3412-
KM-455-24 dated 4.10.2024 of Joint Director, FSL, Agra addressed to
Circle Officer, Refinery, Mathura, it is crystal clear that FSL report in case
State versus Deepak and others, Case Crime No. 890 of 2024, under Section
21/22 of NDPS Act, Police Station Highway, Mathura has been received,
which certified that recovered contraband was Alprazolam.

Learned AGA submits that recovery of 500 grams of Alprazolam was made
from the possession of applicant and after obtaining consent as required
under Section 50 of the NDPS Act, the search was carried out. The
mandatory provisions of Section 105 BNSS has been complied with by the
investigating officer. It is accordingly submitted that the bail plea deserves
outright rejection.

I have considered the rival submissions advanced by learned counsel for the
parties and perused the material available on record.
BAIL No. 2902 of 2026
3

It is evident that during search 500 grams of Alprazolam is stated to be
recovered from the conscious possession of the applicant, which is more
than commercial quantity.

The perusal of letter No. 3412-KM-455-24 dated 4.10.2024 of Joint
Director, FSL, Agra, it is clear that FSL report in this very case crime
number has been received and the recovered contraband was found to be
Alprazolam. The contention of learned Senior Counsel for the applicant that
the FSL report pertains to some other case, is rejected and it appears that
human error has occurred while recording the Parcha No. 7. As regards the
other contention of learned Senior Counsel for the applicant that the
recovery memo does not contain the signature of the applicant, in the
opinion of the Court, the same is not a mandatory requirement and can at
best be treated to be an irregularity having no effect on the alleged recovery
and offfence committed, particularly, when compliance of Section 105
BNSS has been made and the applicant has been apprehended from the spot.

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, 24 & 25, 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.

"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
BAIL No. 2902 of 2026
4

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).

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
BAIL No. 2902 of 2026
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considerations that can be treated as persuasive grounds to grant bail
under Section 37 of the NDPS Act."

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
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
BAIL No. 2902 of 2026
6

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 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
BAIL No. 2902 of 2026
7

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, more than 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 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 2nd bail application is hereby rejected.

It is clarified that the observations made regarding the 2nd bail application is
limited to the decision of the bail application and any observations made
herein shall not effect the trial of the case.

(Ashutosh Srivastava,J.)
February 27, 2026
Ravi Prakash

Digitally signed by :-
RAVI PRAKASH
High Court of Judicature at Allahabad

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