BILALversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 38802 of 2025

Bilal
                                                           .....Applicant(s)
                                  Versus

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

Counsel for Applicant(s)      : Ajay Kumar         Srivastava,    Rajendra
                                Narain
Counsel for Opposite Party(s) : G.A.

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

Heard learned counsel for the applicant, Sri Sashank Singh, learned AGA
for the State and perused the records.

The instant bail application under Section 483 of the BNSS, 2023 has
been filed on behalf of the applicant seeking the enlargement on bail in
Case Crime No.428 of 2025, under Sections 8/20 of NDPS Act, 1985,
Police Station Mudapandey, District Moradabad, during the pendency of
the trial before the court below. The bail application of the applicants
before the court below was rejected by Additional Sessions Judge, Court
No.7, Moradabad, vide order dated 14.10.2025 and the applicant is
incarcerated in jail since 19.09.2025.

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, 2.390 kg (including white bag and two black
polythene) charas which was 1.520 kg (upon weighing without bag and
polythene) was recovered from a bag which he was having with him and
upon asking him he stated that he was coming with the said contraband
from the side of Kashipur and was going towards Moradabad to sell it.
Learned counsel for the applicant submits that the raiding party was
already present on the spot. The samples of the seized materials were not
drawn in the prescribed manner.

Learned counsel for the applicant submits that provisions of Section 51,
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                                  2


52 of the NDPS Act has not been complied with. The independent eye
witness was not associated by the Police party at the time of recovery.

It is also argued that the applicant is absolutely innocent and has been
falsely implicated in the present crime with a view to cause unnecessary
harassment and victimize him. The applicant, who is in jail since
19.09.2025 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 AGA submits that the applicant was arrested on the spot.
Applicant was caught red handed on the spot with 2.390 kg charas
(including white bag and two black polythene) and upon weighing
without bag and polythene it was found to be 1.520 kg charas and it was
recovered from a bag which he was having with him and upon asking him
he stated that he was coming with the said contraband from the side of
Kashipur and was going towards Moradabad to sell it to the people at the
railway station, which is more than the commercial quantity, 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 2.390 kg charas (including white bag and
two black polythene) which was 1.520 kg (upon weighing without bag
and polythene) was alleged to have been recovered from the bag which he
was having with him, 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
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                                   3


     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
     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
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                                   4


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
     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.
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                                    5


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 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
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                                    6


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 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
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                                                                    7


                                    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.)
                                    January 27, 2026
                                    Shahroz




Digitally signed by :-
SHAHROJ ALAM
High Court of Judicature at Allahabad