Allahabad High Court
SATYAPRAKASH SHIVHARE ALIAS SONU SHIVHARE AND ANOTHERversusSTATE OF U.P.
- Decided
Holding
The Court held that the case is fit for bail under Section 37 of the NDPS Act despite alleged procedural lapses, following the ratio in Union of India v. Shiv Shanker Kesari.
Summary
The High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for two accused in a case registered under Sections 8, 20, 29 and 60 of the NDPS Act involving alleged recovery of 40 kg of ganja each from two vehicles. The applicants contended they were falsely implicated, had no conscious possession of the narcotics, and that mandatory provisions of Section 52‑A of the NDPS Act and Section 105 of the BNS had not been complied with; they also pointed to bail being granted to co‑accused. The State argued that the procedural requirements, including videographic evidence from a constable’s mobile phone, had been satisfied. Relying on Section 37 of the NDPS Act and the precedent set in Union of India v. Shiv Shanker Kesari, the Court found the matter suitable for bail without expressing a view on the merits. Consequently, the bail application was allowed subject to a personal bond, sureties and several conditions aimed at preventing tampering with evidence or intimidation of witnesses.
Issues considered
- Whether the mandatory provisions of Section 52‑A of the NDPS Act have been complied with for granting bail.
- Whether the procedural requirements of Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023 have been satisfied.
- Whether the nature of the offence and the alleged lack of conscious possession justify denial of bail under the NDPS Act.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 105, 483
- Code of Criminal Procedure, 1973 — s. 351
- Narcotic Drugs and Psychotropic Substances (NDPS) Act — s. 20, 29, 37, 52-A, 60, 8
Subjects
- bail
- NDPS Act
- Section 52-A
- Section 105
- presumption of innocence
- procedural compliance
- court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 43139 of 2025
Satyaprakash Shivhare Alias Sonu Shivhare And
Another .....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)
Counsel for Applicant(s) : Santosh Kumar Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 69
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Sri Santosh Kumar Singh, learned counsel for the applicants and
Sri Chandra Shekhar Saran, , learned AGA for the State-respondents and
perused the record.
2. The present bail application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023, has been filed on behalf of applicants with a
prayer to release them on bail in Case Crime No. 48 of 2025 , under
Section 8, 20, 29, 60 NDPS Act, registered at Police Station Markundi,
District Chitrakoot, during pendency of the trial.
3. It has been argued by the learned counsel for the applicants that
applicants are innocent and they have been falsely implicated in this case
and they have been languishing in jail since 5.11.2025. It is further
submitted that co-accused Gangaram Kuswaha and Harish Chandra
Shivhare have already been granted bail by a co-ordinate Bench of this
Court vide orders dated 25.2.2206 and 9.3.2026 passed in Criminal Misc.
Bail Applications No. 43146 of 2025 and 43009 of 2025 respectively. It is
further submitted that as per FIR the applicant no. 1 and co-accused
Gangaram Kuswaha were travelling in Bolero vehicle and from whose
possession 40 kg of ganja is said to have recovered and applicant no. 2
and co-accused Harish Chandra Shivhare were travelling in a separate
vehicle and from whose possession 40kg of ganja is said to have been
recovered, however, nothing has been recovered from the conscious
possession of the applicants. It is further submitted that mandatory
BAIL No. 43139 of 2025
2
provisions of Section 52-A of NDPS Act have not been complied with
and provisions of Section 105 BNS have also not been strictly complied
with. It is also submitted that the applicants undertake that they will not
misuse the liberty, if granted. It has also been pointed out that in the wake
of heavy pendency of cases in the Court, there is no likelihood of any
early conclusion of trial.
4. On the other hand, learned A.G.A. has opposed the prayer for grant of
bail to the applicant and mandatory provisions of Section 52-A of NDPS
Act have been complied with and provisions of Section 105 BNS have
also been strictly complied with as the videography of the recovery has
been made from the mobile phone of Constable Ashish Yadav.
5. Co-accused Gangaram Kuswaha and Harish Chandra Shivhare have
already been granted bail by a co-ordinate Bench of this Court. As per
FIR the applicant no. 1 and co-accused Gangaram Kuswaha are said to be
travelling in Bolero vehicle and from whose possession 40 kg of ganja is
said to have recovered and applicant no. 2 and co-accused Harish Chandra
Shivhare are said to be travelling in a separate vehicle and from whose
possession 40kg of ganja is said to have been recovered, however, it is
submitted that nothing is said have been recovered from the conscious
possession of the applicants. It is submitted that mandatory provisions of
Section 52-A of NDPS Act have not been complied with and provisions
of Section 105 BNS have also not been strictly complied with and the
videography has not been made made on the required App rather it has
been made from a mobile phone of one of the constables.
6. Upon considering the totality of facts, nature and the evidence reflected
from record and also taking into consideration the provision of Section 37
of the NDPS Act and in view of the law laid down by Hon’ble Apex
Court in Union of India vs. Shiv Shanker Kesari, 2007 (7) SCC 798 and
without expressing any opinion on merits of the case, I find it to be a fit
case for bail. Hence, the present bail application is ALLOWED.
7. Let the applicants- Satyaprakash Shivhare Alias Sonu Shivhare and
Ravi Shivhare involved in the aforesaid case crime be released on bail on
their furnishing a personal bond of Rs. 50,000/- with two sureties each in
BAIL No. 43139 of 2025
3
the like amount to the satisfaction of the Court concerned with the
following conditions :-
(i) The applicants shall not directly or indirectly make any inducement,
threat, or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the court or to any police
officer or tamper with the evidence.
(ii) The applicants shall not pressurize/intimidate the prosecution
witnesses.
(iii) The applicants shall remain present, in person, before the trial court
on the dates fixed for (i) opening of the case, (ii) framing of charge and
(iii) recording of statement under Section 351 of B.N.S.S.
(iv) The applicants shall file an undertaking to the effect that they shall
not seek any adjournment on the dates fixed for evidence when the
witnesses are present in the trial court.
(v) The applicants shall remain present before the trial court on each date
fixed, either personally or through his counsel.
8. In case of breach of any of the above conditions, it shall be a ground for
cancellation of bail.
9. It is clarified that anything said in this order is limited to the purpose of
determination of this bail application and will in no way be construed as
an expression on the merits of the case. The trial court shall be absolutely
free to arrive at its independent conclusions on the basis of evidence led
unaffected by anything said in this order.
(Jitendra Kumar Sinha,J.)
April 23, 2026
Abhishek
Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad
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