SADIQversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 39421 of 2025




Sadiq
                                                               .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                         :    Mohd. Naushad
Counsel for Opposite Party(s)                    :    G.A.

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

Heard learned counsel for the applicant, Sri Puneet Kumar Singh, learned
AGA for the State-Respondent and perused the record.

This bail application has been moved on behalf of accused-applicant seeking
enlargement on bail in Case Crime No. 554 of 2025, under Sections
8/18/20/29/60 of the NDPS Act, Police Station Kairana, District Shamli.

Learned counsel for the applicant argued that the accused-applicant is
innocent and he has been falsely implicated in this case crime number.
Learned counsel for the applicant further submits that 3 Kg of Charas and 1
Kg of Opium have been recovered from the joint possession of the applicant
and other co-accused persons. He submits that even otherwise there is no
independent witness of the alleged recovery. He submits that the recovered
contraband were sent for chemical analysis but no report has yet been
received. The applicant is languishing in jail since 10.09.2025 and deserves
to be released on bail and in case the applicant is released on bail he will not
misuse the liberty of bail. 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 counsel for the applicant submits that provisions of Section 51, 52
of the NDPS Act has not been complied with. The independent eye witness
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                                   2


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.

Per contra learned A.G.A. has opposed the bail prayer of the applicant by
contending that the innocence of the applicant cannot be adjudged at pre
trial stage who is involved in supplying contraband, therefore, the
applicant does not deserve any indulgence. The applicant was arrested
from the spot (premises of the applicant) in a raid conducted along with
the co-accused and as such the complicity of the applicant in the crime is
established. In case the applicant is released on bail he will again indulge
in similar activity, 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.

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
     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
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                                   3


     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).

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
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                                   4


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 samples therefrom in
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                              5


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
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     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 other co-accused persons was 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
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                                                                       7


                                    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.

                                    February 17, 2026
                                    pks

                                                                                        (Ashutosh Srivastava,J.)




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