RAKESHversusSTATE OF U.P.

            HIGH COURT OF JUDICATURE AT ALLAHABAD
            CRIMINAL MISC. BAIL APPLICATION No. - 39798 of 2025

Rakesh
                                                           .....Applicant(s)
                                  Versus

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

Counsel for Applicant(s)      : Praveen      Kumar             Srivastava,
                                Vindeshwari Prasad
Counsel for Opposite Party(s) : G.A.

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

Heard Shri Vindeshwari Prasad, learned counsel for the applicant, Shri
Rajesh Kumar Singh, learned A.G.A. 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, Rakesh with a prayer to release him on bail in Case
Crime No. 0658 of 2025, under Section 8/20 of Narcotic Drugs and
Psychotropic Substances Act, 1985, Police Station- Subhash Nagar,
District- Bareilly.

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, 2.028 Kg. of Charas was recovered from a black
polythene bag from the possession of the applicant. 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 41(1)
& 50 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
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harassment and victimize him. The applicant, who is in jail since
23.09.2025, having criminal history of four cases, which is explained in
counter affidavit, deserves to be released on bail. In case the applicant is
released on bail he will not misuse the liberty of bail.


Learned A.G.A. submits that the applicant, along with the co-accused
persons, was arrested on the spot. It is further submitted that, in their
statements, the applicant and the co-accused allegedly admitted that they
had brought the Charas from Nepal via Bihar and had supplied it to co-
accused Rakesh, who used to sell the same in Bareilly and the adjoining
areas at a high price. He has further submitted that it is an admitted fact
that the recovery of 0.028 Kg. of Charas, 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 2.028 Kg of Chasras was alleged to be
recovered from the possession of 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.
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     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 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
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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
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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 have
been there had such compliance been done. Courts should take a
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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
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                                            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 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 9, 2026
                                    Vibha Singh




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