AKRAM KHANversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 41895 of 2025

Akram Khan
                                                               .....Applicant(s)
                                     Versus

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

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

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

Heard Shri Ashutosh, 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, Akram Khan with a prayer to release him on bail in
Case Crime No. 649 of 2025, under Section 8/18/25/29/60 of Narcotic Drugs
and Psychotropic Substances Act, 1985, Police Station- Robertsganj,
District- Sonbhadra.

Learned counsel for the applicant has contended that during interception, 18
Quintal, 6. 560 Kilogram Doda was recovered from a DCM bearing
Registration No. UP 32 BG 4616. In fact no such recovery was effected
from the applicant. It is further submitted that recovery was effected in
densely populated area, hence, in the absence of independent public eye
witness, false implication of the applicant in the present case cannot be ruled
out. It is next contended that in the present case the prosecution has failed to
follow strictly the provisions of Section 42, 50, 52A and 57 of the N.D.P.S.
Act. 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 20.06.2025
having two cases of 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. Learned
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AGA submits that from the possession of 18 Quintel, 6. 560 Kilogram Doda
was recovered from the alleged vehicle. The applicant and other co-accused
persons were very much involved in inter-state trafficking as they
themselves have admitted in their voluntary statement under Section 67 of
NDPS Act, which belie all statements and 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 18 Quintel, 6. 560 Kilogram Doda was
alleged to be recovered from the conscious 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."
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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
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
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                                   4

release the accused under the provisions of the NDPS Act unless the
provisions of Section 37 of the Act are satisfied.

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 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.
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(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.


(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
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                                   6


     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, the contraband is 18 Quintal, 6. 560 Kilogram Doda
from the possession of the applicant. The applicant has criminal
antecedents of 02 cases and 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
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                                                                       7


                                    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 11, 2026
                                    Deepak/




Digitally signed by :-
DEEPAK KUMAR KUSHWAHA
High Court of Judicature at Allahabad