SANJAY KUMAR DUBEYversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 37399 of 2025

Sanjay Kumar Dubey
                                                              .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)            :   Ashish Kumar Gupta, Haidar Ali
Counsel for Opposite Party(s)       :   G.A.

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

Heard Shri Ashish Kumar Gupta, learned counsel for the applicant, Shri
Shashank Singh, learned Brief Holder for the State and perused the record
of the case.

The present bail application under Section 483 B.N.S.S. has been filed on
behalf of applicant, Sanjay Kumar Dubey with a prayer to release him on
bail in Case Crime No. 259 of 2025, under Section 8/20 of Narcotic Drugs
and Psychotropic Substances Act, 1985, Police Station- Rohaniya, District-
Varanasi.

Learned counsel for the applicant has contended that on the basis of secret
information, a raid was conducted by the investigating officer of the case
and during interception, 97 Kg. 976 grams of Ganja was recovered from a
DCM vehicle being driven by the applicant. Learned counsel for the
applicant submits that the Investigating Officer of the case has not drawn
samples as prescribed by the Act. The owner of the alleged DCM vehicle
was not arrayed as an accused in this very case crime number. The
independent eye witness was not associated by the Police party at the time of
recovery, hence, the falsity of the applicant in this very case crime number
cannot be ruled out. The investigating officer has not followed the
mandatory provisions of Section 52-A of the NDPS Act.

Learned counsel for the applicant submits that charge sheet in this case was
filed on 24.9.2025. It is also argued that the applicant is absolutely innocent
and has been falsely implicated in the present crime with a view to cause
                                                                BAIL No. 37399 of 2025
                                    2


unnecessary harassment and victimize him. The applicant, who is in jail
since 6.9.2025 having no criminal history to his credit, deserves to be
released on bail. In case the applicant is released on bail he will not misuse
the liberty of bail.

Learned Brief Holder submits that the applicant was arrested from the spot
and 97.976 Kg. of Ganja was recovered from the vehicle being driven by the
applicant. The FSL report (Annexed as Annexure-CA2) also certified that
recovered contraband was of Ganja. He has further submitted that it is an
admitted fact that the recovery of 97.976 Kg. of Ganja, which is more than
the commercial quantity, has been recovered from the vehicle in question,
hence, Section 37 of NDPS Act is attracted in the present case, therefore, the
bail application is liable to be rejected.

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

It is evident that during search 97.976 Kg. of Ganja was alleged to be
recovered from the vehicle which was being driven by the applicant, which
is more than commercial quantity.

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.

      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
                                                              BAIL No. 37399 of 2025
                                  3


     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
                                                              BAIL No. 37399 of 2025
                                   4


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
     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
                                                         BAIL No. 37399 of 2025
                              5


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 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
                                                           BAIL No. 37399 of 2025
                              6


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
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."
                                                                                              BAIL No. 37399 of 2025
                                                                       7


                                    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
                                    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.


                                                                                        (Ashutosh Srivastava,J.)
                                    February 11, 2026
                                    Ravi Prakash




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