TASAWWARversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 41385 of 2025

Tasawwar
                                                               .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                     :   Ali Hasan, Istiyaq Ali
Counsel for Opposite Party(s)                :   G.A.

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

Heard Shri Ali Hasan and Sri Istiyaq Ali, learned counsel for the applicant,
Shri Rajendra Kuamr 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, Tasawwar with a prayer to release him on bail in Case
Crime No. 231 of 2025, under Section 8/21C/29 of Narcotic Drugs and
Psychotropic Substances Act, 1985, Police Station- Nanauta, District-
Saharanpur.


Learned counsel for the applicant has contended that on the basis of secret
information, a raid was conducted on 21.09.2025 by the investigating officer
of the case and during interception, 713 gram of Smack/Heroin was
recovered from the bag which was carried by the applicant on his back.
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 52-A 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
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and victimize him. The applicant, who is in jail since 22.09.2025 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. In the
statement, the applicant has admitted that one person namely Kosar s/o
Kamil has send him to Bareilly where one person will met with him, who
shall provide the Smack after payment and when he returned back and was
waiting Kosar, he was arrested by the police. He has further submitted that it
is an admitted fact that the recovery of 713 gram of Smack/Heroin, which is
more than the commercial quantity, has been recovered from the bag of the
applicant, 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 713 gram of Smack/Heroin was alleged to be
recovered from the bag which was being carried by the applicant on his
back, 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
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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
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
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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
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
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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 hesitation proceed to
hold the accused guilty notwithstanding any procedural defect in terms of
Section 52A of the NDPS Act.
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(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 from the possession of applicant and he 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
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                                    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