SMT. ZEENATversusSTATE OF U.P.

                HIGH COURT OF JUDICATURE AT ALLAHABAD

          CRIMINAL MISC. BAIL APPLICATION No. - 41221 of 2025

Smt. Zeenat
                                                                        .....Applicant(s)
                                        Versus
State of U.P.
                                                                  .....Opposite Party(s)

Counsel for Applicant(s)                                 :     Jaideep Pandey
Counsel for Opposite Party(s)                            :     G.A.

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

Heard Shri Jaideep Pandey, learned counsel for the applicant, Shri Rajendra 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, Smt. Zeenat, with a prayer to release heron bail in Case Crime No. 668 of
2025, under Section 08/20 of Narcotic Drugs and Psychotropic Substances Act, 1985,
Police Station- Katghar, District- Moradabad.

Learned counsel for the applicant contends that the informant, S.I. Kapil Kumar, on
19.10.2025, was on patrolling duty along with his police team. When they reached
Khwaza Nagar near Garib Nawaz Masjid, they allegedly saw a lady, who is the
applicant herein, sitting on a chair outside her house, while two persons were standing
nearby. Upon noticing the police party, the said two co-accused persons allegedly fled
from the spot after jumping over the wall. The applicant also attempted to enter her
house but was apprehended by the police while holding a yellow plastic bag in her
hand. It is alleged that she disclosed that the bag contained charas and ganja. Total
weight 117 gram of Ganja and 1207 gram of Charas and cash Rs. 635/- were
recovered from her possession.

Learned counsel further submits that the entire police team was present at the spot and
no independent public witness was associated with the alleged recovery. It is also
contended that the samples of the seized contraband were not drawn in accordance
with the prescribed procedure.

Learned counsel for the applicant submits that provisions of Section 50, 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 submitted that charge-sheet has not been submitted in this case. 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 her. The applicant,
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                                     2

who is in jail since 20.10.2025 having no criminal history to her 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 along with co-accused persons were arrested
on the spot. In the statement, the applicant has accepted that the alleged contrabands
are Charas and Ganja. He has further submitted that it is an admitted fact that the
recovery of 117 gram of Ganja and 1207 gram of Charas, which is below the
commercial quantity, has been recovered from the possession of the applicant in a
yellow and black polythen bag, 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 1207 gram of Charas 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.

      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:
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                                     3

      "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 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
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                                    4

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
      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
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                              5

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
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
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                                                                         6

                                          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 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 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 9, 2026
                                    Vibha Singh
                                                                                                   (Ashutosh Srivastava,J.)




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