PRADEEP KUMAR NAIversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 45090 of 2025

Pradeep Kumar Nai
                                                                 .....Applicant(s)
                                     Versus

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

Counsel for Applicant(s)            : Dileep Kumar Singh, Rohit Kumar
Counsel for Opposite Party(s)       : G.A.

Court No. - 9
                HON'BLE ROHIT RANJAN AGARWAL, J.

1. Heard learned counsel for the applicant and learned A.G.A. for the
State.

2. This is the third bail application of the applicant. By means of the
present bail application, applicant- Pradeep Kumar Nai seeks bail in Case
Crime No.03 of 2024, under Sections 419, 420, 467, 468, 471, 120-B of
IPC and Section 8/20 of Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter referred to as “NDPS Act”), Police Station-
Girwan, District- Banda, during the pendency of trial.

3. It is contended by learned counsel for the applicant that the allegation
in the first information report is that there is a recovery of 620 Kgs.
Contraband Ganja which has been recovered from DCM Eicher Truck
No.MP 16 GA 1523 which was being transferred into Bolero Car. The
recovery from the applicant has been shown is 50.800 Kgs. of Ganja.

4. The first bail application of the applicant being Criminal Misc. Bail
Application No.8028 of 2024 was rejected on 01.08.2024 and following
order was passed.

     "1. Heard learned counsel for the applicant and learned A.G.A. for the
     State.
     2. By means of the present bail application, the applicant seeks bail in
     Case Crime No. 03 of 2024, under Section 419, 420, 467, 468, 471, 120-B
     IPC and 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985
                                                         BAIL No. 45090 of 2025
                               2


(hereinafter referred to as “NDPS Actâ€), Police Station- Girwan,
District- Banda, during the pendency of trial.
3. It is contended by learned counsel for the applicant that the alleged
recovery of 620 kgs. of Contraband (Ganja) is said to be recovered from
DCM Eicher Truck No.MP16 GA1523, which was being transferred into
Bolaro Car. The applicant was apprehended along with five other co-
accused and the recovery shown from the applicant is of one bag
weighing 50.800 kg. of Ganja. Rest of the recovery has been shown from
other co-accused. It is further contended that no compliance of Section 50
of the NDPS Act was done. It is further contended that the applicant is a
labourer and works at a Saloon. It is further contended that provision of
Section 52-A was not followed for sampling. It is further alleged that the
applicant is in jail since 04.01.2024.
4. Learned A.G.A. has opposed the bail application and submitted that a
huge quantity of 620 kgs of Ganja was recovered from the applicant
alongwith other co-accused. It is further contended that the contraband
was being carried from one State to other for selling by using vehicle with
fake number place installed. It is further submitted that the police canot
plant such a huge quanity of contraband. It is further submitted that the
charge-sheet has been filed against the applicant before the competent
Court.
5. I have heard learned counsel for the parties and perused the material
on record.
6. This is a case where contraband (Ganja) amounting to 620 kg. has
been recovered from the possession of the applicant and other co-
accused.
7. Section 37 of the NDPS Act governs the field for grant of bail in
offences which are cognizable and non-bailable. Section 37 is extracted
here as under;
"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section
19 or section 24 or section 27A and also for offences involving
commercial quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the
                                                          BAIL No. 45090 of 2025
                              3


application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is
satisfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence while
on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-
section (1) are in addition to the limitations under the Code of Criminal
Procedure, 1973 (2 of 1974) or any other law for the time being in force,
on granting of bail."
8. According to the aforesaid provisions, the Court, before granting bail,
has to record reason that there are reasonable ground that the applicant
is not guilty of such offence and furthermore that he is not likely to
commit any offence while on bail.
9. Apex Court, while dealing with aforesaid provision in case of Union of
India Vs. Ram Samujh and Another, (1999) 9 SCC 429, held as under;
"7. It is to be borne in mind that the aforesaid legislative mandate is
required to be adhered and followed. It should be borne in mind that in
murder case, accused commits murder of one or two persons, while those
persons who are dealing in narcotic drugs are instruments in causing
death or in inflicting death blow to number of innocent young victims,
who are vulnerable: it causes deleterious effects and deadly impact on the
society; they are a hazard to the society; even if they are released
temporarily, in all probability, they would continue their nefarious
activities of trafficking and/or dealing in intoxicants clandestinely.
Reason may be large stake and illegal profit involved. This Court, dealing
with the contention with regard to punishment under NDPS Act, has
succinctly observed about the adverse effect of such activities in Durand
Didien v. Chief Secretary, Union Territory of Goa. (1990) 1 SCC 95 as
under:
"24. With deep concern, we may point out that the organised activities of
the underworld and the clandestine smuggling of narcotic drugs and
psychotropic substances into this country and illegal trafficking in such
drugs and substances have led to drug addiction among a sizeable section
of the public, particularly the adolescents and students of both sexes and
the menace has assumed serious and alarming proportion in the recent
years. Therefore, in order to effectively control and eradicate this
                                                            BAIL No. 45090 of 2025
                               4


proliferating and booming devastating menace, causing deleterious
effects and deadly impact on the society as a whole, the Parliament in the
wisdom has made effective provisions by introducing this Act 81 of 1985
specifying mandatory minimum imprisonment and fine,"
8. To check the menace of dangerous drugs flooding the market, the
Parliament has provided that the person accused of offences under the
NDPS Act should not be released on bail during trial unless mandatory
conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that accused is not guilty of
such offence; and
(ii) that he is not likely to commit while on bail."
10. In Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798, Apex
Court elaborated and explained the conditions for granting of bail as
provided under Section 37 of the NDPS Act. Relevant paragraph Nos. 6
and 7 are extracted here as under;
"6. As the provision itself provides no person shall be granted bail unless
the two conditions are satisfied. They are; the satisfaction of the Court
that there are reasonable grounds for believing that the accused is not
guilty and that he is not likely to commit any offence while on bail. Both
the conditions have to be satisfied. If either of these two conditions is not
satisfied, the bar operates and the accused cannot be released on bail.
7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds".
The expression means something more than prima facie grounds. It
connotes substantial probable causes for believing that the accused is not
guilty of the offence charged and this reasonable belief contemplated in
turn points to existence of such facts and circumstances as are sufficient
in themselves to justify recording of satisfaction that the accused is not
guilty of the offence charged."
11. In Union of India Vs. Rattan Mallik @ Habul, (2009) 1 SCC (Cri)
831, Apex Court observed as under;
"14. We may, however, hasten to add that while considering an
application for bail with reference to Section 37 of the NDPS Act, the
Court is not called upon to record a finding of `not guilty'. At this stage, it
is neither necessary nor desirable to weigh the evidence meticulously to
arrive at a positive finding as to whether or not the accused has
committed offence under the NDPS Act. What is to be seen is whether
                                                            BAIL No. 45090 of 2025
                                 5


there is reasonable ground for believing that the accused is not guilty of
the offence(s) he is charged with and further that he is not likely to
commit an offence under the said Act while on bail. The satisfaction of the
Court about the existence of the said twin conditions is for a limited
purpose and is confined to the question of releasing the accused on bail."
12. In State of Kerala Etc. Vs. Rajesh Etc. AIR 2020 SC 721, Apex Court
considered the scope of Section 37 and relying upon earlier decision in
Ram Samujh (supra) held as under;
"20. The scheme of Section 37 reveals that the exercise of power to grant
bail is not only subject to the limitations contained under Section 439 of
the CrPC, but is also subject to the limitation placed by Section 37 which
commences with non-obstante clause. The operative part of the said
section is in the negative form prescribing the enlargement of bail to any
person accused of commission of an offence under the Act, unless twin
conditions are satisfied. The first condition is that the prosecution must be
given an opportunity to oppose the application; and the second, is that the
Court must be satisfied that there are reasonable grounds for believing
that he is not guilty of such offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.
21. The expression "reasonable grounds" means something more than
prima facie grounds. It contemplates substantial probable causes for
believing that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires existence of such
facts and circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged offence. In the
case on hand, the High Court seems to have completely overlooked the
underlying object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time being in force,
regulating the grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for."
13. The Apex Court in Union of India vs. Prateek Shukla AIR 2021 SC
1509 held that merely recording the submissions of the parties does not
amount to an indication of a judicial or, for that matter, a judicious
application of mind. The provision of Section 37 of the NDPS Act provide
the legal norms which have to be applied in determining whether a case
for grant of bail is made out.
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                              6


14. In State (NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha
(2021) 5 SCC 724 the Court held as under :
"......Section 37 of the NDPS Act stipulates that no person accused of an
offence punishable for the offences under section 19 or section 24 or
section 27A and also for offences involving commercial quantity shall be
released on bail, where the Public Prosecutor oppose the application,
unless the court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he is not likely to
commit any offence while on bail."
15. In a recent judgment of Union of India through Narcotics Control
Bureau, Lucknow vs. Mohd. Nawaz Khan (2021) 10 SCC 100, Hon'ble
Apex Court while cancelling the bail of accused held that the High Court
should consider that in case the accused is enlarged on bail, there should
be reasonable ground to believe that he will not commit an offence in
future. Relevant paras of the judgment reads hereas under :
"23. 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.
.....
25. We shall deal with each of these circumstances in turn. The
respondent has been accused of an offence under Section 8 of the NDPS
Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said
Act. Section 8 of the Act prohibits a person from possessing any narcotic
drug or psychotropic substance. The concept of possession recurs in
Sections 20 to 22, which provide for punishment for offences under the
Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7
SCC 465 : 2003 SCC (Cri) 1664] this Court held that : (SCC p. 472,
paras 19-23 & 26)
"19. Whether there was conscious possession has to be determined with
reference to the factual backdrop. The facts which can be culled out from
the evidence on record are that all the accused persons were travelling in
                                                               BAIL No. 45090 of 2025
                                7


a vehicle and as noted by the trial court they were known to each other
and it has not been explained or shown as to how they travelled together
from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence.
Section 20 appears in Chapter IV of the Act which relates to offences for
possession of such articles. It is submitted that in order to make the
possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was coupled with the
requisite mental element i.e. conscious possession and not mere custody
without awareness of the nature of such possession, Section 20 is not
attracted.
22. The expression "possession" is a polymorphous term which assumes
different colours in different contexts. It may carry different meanings in
contextually different backgrounds. It is impossible, as was observed
in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] to work out a
completely logical and precise definition of "possession" uniform[ly]
applicable to all situations in the context of all statutes.
23. The word "conscious" means awareness about a particular fact. It is a
state of mind which is deliberate or intended.
***
26. Once possession is established, the person who claims that it was not
a conscious possession has to establish it, because how he came to be in
possession is within his special knowledge. Section 35 of the Act gives a
statutory recognition of this position because of the presumption
available in law. Similar is the position in terms of Section 54 where also
presumption is available to be drawn from possession of illicit articles."
26. What amounts to "conscious possession" was also considered in
Dharampal Singh v. State of Punjab [Dharampal Singh v. State of
Punjab, (2010) 9 SCC 608 : (2010) 3 SCC (Cri) 1431], where it was held
that the knowledge of possession of contraband has to be gleaned from
the facts and circumstances of a case. The standard of conscious
possession would be different in case of a public transport vehicle with
several persons as opposed to a private vehicle with a few persons known
to one another. In Mohan Lal v. State of Rajasthan [Mohan Lal v. State of
                                                         BAIL No. 45090 of 2025
                              8


Rajasthan, (2015) 6 SCC 222 : (2015) 3 SCC (Cri) 881], this Court also
observed that the term "possession" could mean physical possession with
animus; custody over the prohibited substances with animus; exercise of
dominion and control as a result of concealment; or personal knowledge
as to the existence of the contraband and the intention based on this
knowledge.
.…
28. 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 v. Rattan Mallik [Union of India v. Rattan
Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831] , 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.
29. In line with the decision of this Court in Rattan Mallik [Union of
India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831], 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.â€
16. Supreme Court while dealing with the question of possession and
application of Section 50 in case of Megh Singh Vs. State of Punjab, 2003
CRI. L.J. 4329, held that word ''possession' includes conscious
possession. Further Section 50 applies in case of personal search of a
person and it does not extend to search of a vehicle or container or a bag
or premises. Relevant paragraph nos. 9 to 13 and 16 are extracted here
as under;
"9. The expression 'possession' is a polymorphous term which assumes
different colours in different contexts. It may carry different meanings in
contextually different backgrounds. It is impossible, as was observed in
Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil
Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely
                                                          BAIL No. 45090 of 2025
                                9


logical and precise definition of "possession" uniformally applicable to
all situations in the context of all statutes.
10. The word 'conscious' means awareness about a particular fact. It is a
state of mind which is deliberate or intended.
11. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756)
possession in a given case need not be physical possession but can be
constructive, having power and control over the article in case in
question, while the person whom physical possession is given holds it
subject to that power or control.
12. The word 'possession' means the legal right to possession (See Health
v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was
observed that where a person keeps his fire arm in his mother's flat which
is safer than his own home, he must be considered to be in possession of
the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).
13. Once possession is established the person who claims that it was not a
conscious possession has to establish it, because how he came to be in
possession is within his special knowledge. Section 35 of the Act gives a
statutory recognition of this position because of presumption available in
law. Similar is the position in terms of Section 54 where also presumption
is available to be drawn from possession of illicit articles. This position
was highlighted in Madan Lal and Anr. v. State of Himachal Pradesh
(2003 (6) SCALE 483).
16. A bare reading of Section 50 shows that it only applies in case of
personal search of a person. It does not extend to search of a vehicle or a
container or a bag, or premises. (See Kalema Tumba v. State of
Maharashtra and Anr. (JT1999 (8) SC 293), The State of Punjab v.
Baldev Singh (JT1999 (4) SC 595), Gurbax Singh v. State of
Haryana(2001(3) SCC 28). The language of Section 50 is implicitly clear
that the search has to be in relation to a person as contrasted to search of
premises, vehicles or articles. This position was settled beyond doubt by
the Constitution Bench in Baldev Singh's case (supra). Above being the
position, the contention regarding non-compliance of Section 50 of the
Act is also without any substance."
17. While dealing with the provision of Section 50 of the Act, Apex Court
in case of Dehal Singh Vs. State of Himachal Pradesh, 2011 (72) ACC
661, held that Section 50 relates to the search of a person and not of the
                                                                 BAIL No. 45090 of 2025
                                     10


     vehicle and thus there was no requirement for informing the applicant of
     the right to be searched in presence of a gazetted officer of Magistrate.
     18. In the light of the analysis of the case, as mentioned above, and
     considering that recovery of huge quantity of contraband (Ganja) is 620
     kgs. and applicant was apprehended on the spot and was having a
     conscious and constructive possession over the recovered contraband
     (Ganja), I do not find any reasonable ground in terms of Section 37 of the
     NDPS Act to release the applicant on bail.
     19. Thus, taking into account the submission made by learned counsel for
     the parties and the evidence on record and the complicity of the applicant
     in offence in question, this Court do not find any ground to release the
     applicant on bail.
     20. In the result, the bail application stands rejected."

5. Thereafter, the applicant moved second bail application being Criminal
Misc. Bail Application No.12458 of 2025 which was rejected on
23.05.2025 and following order was passed:-

     "1. Heard learned counsel for the applicant and learned A.G.A. for the
     State.
     2. This is the second bail application of the applicant. By means of the
     present bail application, the applicant seeks bail in Case Crime No. 03 of
     2024, under Sections 419, 420, 467, 468, 471, 120-B IPC and 8/20 of
     Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
     referred to as “NDPS Actâ€), Police Station- Girwan, District- Banda,
     during the pendency of trial.
     3. Counsel for the applicant submitted that there is no compliance of
     Section 52A of NDPS Act and further the co-accused Natthu Yadav has
     already been enlarged on bail by this Court vide order dated 10.04.2025
     in Criminal Misc. Bail Application No.9893 of 2024. He further submits
     that he is in jail since 04.01.2024. Apart from this, no new argument was
     advanced by counsel for the applicant.
     4. Learned A.G.A. has vehemently opposed the bail application.
     5. I have heard learned counsel for the parties and perused the material
     on record.
     6. The question with regard to fresh argument to be considered in second
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                             11


bail application on those very facts that were available to the accused
while his earlier bail application was moved and rejected, came for
consideration before Division Bench of this Court in case of Satya Pal vs.
State of U.P., 1998 (37) ACC 287. Division Bench relying upon the
decision of Apex Court in case of State of Maharastra vs. Buddhikota
Subha Rao, AIR 1989 SC 2292 held as under:-
"4. We have heard learned counsel for the parties and have gone through
the cases which were cited before the learned single Judge as also before
us. We think that the point is well settled by the judgment of the Supreme
Court in the case of State of Maharashtra v. Buddhikota Subha Rao, AIR
1989 SC 2292. In the aforesaid judgment of the Supreme Court while
disapproving grant of bail by a learned single Judge of the High Court
just after two days when a number of bail applications had been
dismissed by another learned single Judge of that Court the Supreme
Court also considered various other aspects relating to the question as to
under what circumstances an application for bail should be considered
even a previous application for bail had been rejected. It will be proper
to. quote relevant passages from paragraphs 6 and 7 of the said judgment
:-
6. ...The question then is whether there was justification for releasing the
respondent on bail to facilitate yogic exercises under expert guidance at
his residence, albeit under conditions of surveillance, even though
Puranik, J. had rejected a more or less similar prayer only two days
before? Should this Court refuse to exercise jurisdiction under Article
136 of the Constitution even if it is satisfied that the jurisdiction was
wrongly exercised.
7. Liberty occupies a place on pride in our socio-political order. And who
knew the value of liberty more than the founding fathers of our
Constitution whose liberty was curtailed time and again under Draconian
Laws by the colonial rulers. That is why they provided in Article 21 of the
Constitution that no person shall be deprived of his personal liberty
except according the procedure established by law. It follows therefore
that the personal liberty of an individual can be curbed by procedure
established by law. The Code of Criminal Procedure, 1973, is one such
procedural law. The law permits curtailment of liberty of antisocial and
                                                          BAIL No. 45090 of 2025
                             12


anti-national elements. Article 22 casts certain obligations on the
authorities in the event of arrest of an individual accused of the
commission of a crime against society or the Nation. In cases of under-
trial charged with the commission of an offence or offences the Court is
generally called upon to decide whether to release him on bail or to
commit him to jail. This decision has to be made, mainly in non-bailable
cases, having regard to the nature, of the crime, the circumstances in
which it was committed, the background of the, accused, the possibility of
his jumping bail, the impact that his release may make on the prosecution
witnesses, its impact on society and the possibility of retribution, etc. In
the present case the successive bail applications preferred by the
respondent were rejected on merits having regard to the gravity of the
offence alleged to have been committed. Once such application No. 36 of
1989 was rejected by Suresh, J. himself. Undeterred the respondent went
on preferring successive applications for bail. All such pending bail
applications were rejected by Puranik, J. by a common order on 6th June,
1989. Unfortunately Puranik, J. was not aware of the pendency of yet
another bail application No. 995/ 89 otherwise he would have disposed it
of by the very same common order. Before the ink was dry on Puranik J.'s
order, it was upturned by the impugned order. It is not as if the Court
passing the impugned order was not aware of the decision of Puranik, J.
in fact there is a reference to the same in the impugned order. Could this
be done in the absence of new facts and changed circumstances ? What is
important to realise is that in Criminal Application No. 375 of 1989, the
respondent had made an identical request as is obvious from one of the
prayers (extracted earlier) made therein. Once that application was
rejected there was no question of granting a similar prayer. That is
virtually overruling the earlier decision without there being a change, in
the fact situation. And, when we speak of change, we mean a substantial
one which has a direct impact on the earlier decision and not merely
cosmetic changes, which are of little or no consequence. Between the two
orders there was a gap of only two days and it is nobody's case that
during these two days drastic changes had taken place necessitating the
release of the respondent on bail. Judicial discipline, propriety and
comity demanded that the impugned order should not have been passed
                                                         BAIL No. 45090 of 2025
                             13


reversing all earlier orders including the one rendered by Puranik, J,
only a couple of days before, in the absence of any substantial change in
the fact-situation. In such cases it is necessary to act with restraint and
circumspection so that the process of the& Court is not abused by a
litigant and an impression does not gain ground that the litigant has
either successfully avoided one judge or selected another to secure an
order, which had hitherto eluded him. In such a situation the proper
course, we think, is to direct that; the matter! be placed before the same
learned Judge who disposed of the earlier applications. Such a practice
or convention would prevent abuse of the process of Court inasmuch as it
will prevent an impression being created that a litigant is avoiding or
selecting a Court to secure an order to his liking. Such a practice would
also discourage the filing of successive bail applications without change
of circumstances. Such a practice if adopted would be conducive to
judicial discipline and would also save the Court's time as a judge
familiar with the facts would be able to dispose of the subsequent
application with despatch. It will also result in consistency. In this view
that we take we are fortified by the observations of this Court in
paragraph 5 of the judgment in Shahzad Hasan Khan v. Ishtiaq Hasan
Khan (1987) 2 SCC 684. For the above reasons we are of the view that
there was no justification for passing the impugned order in the absence
of a substantial change in the fact-situation. That is what prompted
Shetty, J. to describe the impugned order as 'a bit out of the ordinary.'
Judicial restraint demands that we say no more.
5. A reading of the above mentioned passage from the judgment of the
Supreme court makes it clear that there is no bar in successive bail
applications being moved for consideration by the Courts. However the
Supreme Court clearly ob-served that the practice suggested would also
discourage filing of successive bail applications without change of
circumstances. This observation makes it clear that it should be only
when some new facts and circumstances have developed after rejection of
the previous bail application then only the second bail application should
be considered on merit. The learned single Judge who referred this case
to be considered by the Division Bench had made the following
observations in his referring order;-
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                             14


In my view this direction of the Supreme Court is intended at maintaining
some degree of finality even to interim orders and not keeping it open to
frequent change unless substantial changes in fact-situation are
indicated. Otherwise our Courts including' superior Courts would tie
flooded with frivolous repeated prayers for bail as new arguments and
new twists on same facts would always be advanced by legal experts. It is
therefore, necessary that a decision should be given by a higher Bench on
the question if at all it would be open for a Court to allow fresh
arguments on the same facts after a former prayer was although
specifically the points urged in the subsequent applications were not
considered.
We are in complete agreement with the views expressed by the learned
single Judge and agree that a second bail application cannot be
entertained on the same facts after a formal prayer was rejected although
subsequently points urged in the subsequent bail applications were not
considered.
6. Learned counsel for the applicant strenuously wanted to support the
view taken by the learned single Judge in the case of Gama v. State of
U.P., 1986 ( 23 ) ACC 339. We are not inclined to accept the view taken
by the learned single Judge in the said case. It is not uncommon but
rather almost an accepted norm that the High Courts while rejecting the
bail application do not give reasons for such rejection. Reasons are
generally not given as observations tend to influence and affect the trial
in pending cases. Therefore, the following observations of the learned
single Judge in the case of Gama v. State of U.P.(supra) does not lay
down the correct law.
Even though it may be second or third bail application, but unless it is
apparent from a reading of the first bail order that the point urged in the
subsequent bail applications was also considered and rejected, it cannot
be said that the point urged in the second or third bail application would
be deemed to have been considered in the first bail application just by
implication.
We accordingly overrule this view taken by the learned single Judge in
Gama's case (supra)."
7. In the second bail application moved by the applicant, no new ground
                                                            BAIL No. 45090 of 2025
                              15


for consideration has been taken, apart from the fact that the applicant is
in jail since 04.01.2024 and one of the co-accused Natthu Yadav has been
enlarged on bail by the coordinate Bench of this Court. The counsel has
only placed argument on the earlier argument made when the first bail
application was considered and also that no compliance of Section 52A of
the Act was done by the officers while the case under the NDPS Act was
registered and he was taken into custody.
8. Section 52A was inserted by the Act 2 of 1989 and came into effect
from 29.05.1989. Prior to insertion of Section 52A, Central Government
had issued a notification on 17.03.1986 in exercise of power under the
NDPS Act and constituted Narcotics Control Bureau (NCB). The NCB
had issued Standing Instructions No.1 of 88 dated 15.03.1988. The
necessity to insert Section 52A arose in view of International Convention
of 1988 held by United Nations.
9. After the said insertion of Section 52A, Standing Order No.1 of 1989
was followed. From time to time, Central Government had been issuing
notifications in respect of disposal of narcotic drugs and psychotropic
substances, controlled substances and conveyances. The matter in regard
to compliance of Section 52A of the Act came up for consideration before
Hon’ble Apex Court in case of Narcotics Control Bureau vs. Kashif
in Criminal Appeal No.5544 of 2024 arising out of Special Leave Petition
(Crl.) No.12120 of 2024, which was decided on 20.12.2024.
10. Hon’ble Supreme Court considering the legislative intent and the
history of the NDPS Act and insertion of Section 52A held that the
heading of Section 52A itself leave no room of doubt that the provision
was inserted for an early disposal of the seized narcotic drugs and
psychotropic substances, as one of the measures required to be taken to
implement the provisions of the International Conventions on Narcotics
Drugs and Psychotropic Substances. Relevant paras 20, 21, 23 and 24 of
the judgment are extracted here as under :-
“20. Now, so far as Section 52A is concerned, the language employed
therein itself is very clear that the said provision was inserted for an early
disposal of the seized narcotic drugs and psychotropic substances, having
regard to the hazardous nature, vulnerability to theft, substitution,
constraints of proper storage space and other relevant considerations.
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                                16


Apart from the plain language used in the said section, its Heading also
makes it clear that the said provision was inserted for the Disposal of the
seized narcotic drugs and psychotropic substances. As per the well settled
rule of interpretation, the Section Heading or Marginal note can be relied
upon to clear any doubt or ambiguity in the interpretation of any
provision and to discern the legislative intent. The Section Heading
constitutes an important part of the Act itself, and may be read not only
as explaining the provisions of the section, but it also affords a better key
to the constructions of the provisions of the section which follows than
might be afforded by a mere preamble. (Eastern Coalfields Limited vs.
Sanjay Transport Agency and Another, (2009) 7 SCC 345)
21. The insertion of Section 52A with the Heading "Disposal of seized
narcotic drugs and psychotropic substances" along with the insertion of
the words "to provide for the forfeiture of property derived from or used
in, illicit traffic in narcotics drugs and psychotropic substances, to
implement the provisions of International Conventions on Narcotics
Drugs and Psychotropic Substances", in the long title of the NDPS Act,
by Act 2 of 1989 w.e.f. 29.05.1989, leaves no room of doubt that the said
provision of Section 52A was inserted for an early disposal of the seized
narcotic drugs and psychotropic substances, as one of the measures
required to be taken to implement the provisions of the International
Conventions on Narcotics Drugs and Psychotropic Substances. The
Heading of Section 52A i.e. Disposal of seized narcotic drugs and
psychotropic substances delineates the object and reason of the insertion
of said provision and such Heading cannot be underscored. From the
bare reading of Section 52A also it is very much discernable that sub-
section (1) thereof empowers the Central Government, having regard to
the hazardous nature, vulnerability to theft, substitution, constraint of
proper storage space or any other relevant consideration, to specify
narcotic drugs, psychotropic substances for the purpose of their disposal
as soon as may be after their seizure, by such officer and in such manner
as the Central Government may determine after following the procedure
specified in sub-section (2).
.......
23. As demonstrated above, sub-section (2) of Section 52A specifies the
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                             17


procedure as contemplated in sub-section (1) thereof, for the disposal of
the seized contraband or controlled narcotic drugs and psychotropic
substances. Any deviation or delay in making the application under
subsection (2) by the concerned officer to the Magistrate or the delay on
the part of the Magistrate in deciding such application could at the most
be termed as an irregularity and not an illegality which would nullify or
vitiate the entire case of the prosecution. The jurisprudence as developed
by the courts so far, makes clear distinction between an “irregular
proceeding†and an “illegal proceeding.†While an irregularity can
be remedied, an illegality cannot be. An irregularity may be overlooked
or corrected without affecting the outcome, whereas an illegality may
lead to nullification of the proceedings. Any breach of procedure of rule
or regulation which may indicate a lapse in procedure, may be
considered as an irregularity, and would not affect the outcome of legal
proceedings but it can not be termed as an illegality leading to the
nullification of the proceedings. 24.Section 52A was inserted only for the
purpose of early disposal of the seized contraband drugs and substances,
considering the hazardous nature, vulnerability to theft, constraint of
proper storage space etc. There cannot be any two opinions on the issue
about the early disposal of the contraband drugs and substances, more
particularly when it was inserted to implement the provisions of
International Convention on the Narcotics Drugs and Psychotropic
Substances, however delayed compliance or non-compliance of the said
provision by the concerned 23 officer authorised to make application to
the Magistrate could never be treated as an illegality which would entitle
the accused to be released on bail or claim acquittal in the trial, when
sufficient material is collected by the Investigating Officer to establish
that the Search and Seizure of the contraband substance was made in due
compliance of the mandatory provisions of the Act."
11. The Apex Court further considered the scope of Section 52A in light of
the decision of Constitution Bench in case of Pooran Mal vs. Director of
Inspection (Investigation) New Delhi and others, (1974) 1 SCC 345 and
Constitution Bench decision in case of State of Punjab vs. Baldev Singh
(1999) 6 SCC 172 as well as decision in case of State of H.P. vs. Pirthi
Chand and Another (1996) 2 SCC 37 and State of Punjab vs. Makhan
                                                          BAIL No. 45090 of 2025
                             18


Chand (2004) 3 SCC 453 and held that evidence collected during course
of investigation in legal and proper manner and sought to be used in
course of trial with regard to the seized contraband substances could not
be simply brushed aside on the ground of procedural irregularity if any,
committed by the concerned officer authorized in making application to
the Magistrate as contemplated under Section 52A of the Act. Relevant
paras 31, 32 and 33 of the judgment in case of Kashif (supra) are
extracted here as under :-
"31. From the above decisions, the position that emerges is that this
Court in catena of decisions, has approved the procedure of spot searches
and seizures in compliance with the Standing Orders and the
Notifications issued by the NCB and the Central Government, and upheld
the convictions on being satisfied about the search and seizure made by
the officers as per the provisions of the Act and being satisfied about the
scientific evidence of F.S.L. reports etc. Even otherwise, in 28 view of the
law laid down by the Constitution Benches in case of Pooran Mal and in
case of Baldev Singh, any procedural illegality in conducting the search
and seizure by itself, would not make the entire evidence collected thereby
inadmissible. The Court would have to decide the admissibility of
evidence in the context and the manner in which the evidence was
collected and was sought to be used during the course of trial. The
evidence collected during the course of investigation in legal and proper
manner and sought to be used in the course of trial with regard to the
seized contraband substance could not be simply brushed aside, on the
ground of procedural irregularity if any, committed by the concerned
officer authorised in making application to the Magistrate as
contemplated under Section 52A of the Act.
32. Significantly, the Authorised Officer can make the application under
subsection (2) of Section 52A for three purposes – (a) for certifying the
correctness of the inventory prepared by him; or (b) taking in presence of
such magistrate, photographs of the seized drugs, substances and
conveyances and certifying such photographs as true; or (c) allowing to
draw representative samples of such drugs or substances, in the presence
of such Magistrate, and certifying the correctness of any list of samples so
drawn. The use of the conjunction “OR†made in between the three
                                                         BAIL No. 45090 of 2025
                             19


purposes mentioned therein, itself makes it explicitly clear that the
purposes for which the application could be made under sub-section (2)
are alternative and not cumulative in nature. Such provision specifying
multiple alternative purposes could not be construed as a mandatory
provision muchless its non-compliance fatal to the case of prosecution.
33. Though it is true that the inventory certified, photographs taken and
the list of samples drawn under sub-section (2) has to be treated by the
Court as primary evidence in view of sub-section (3), nonetheless the
documents like Panchnama, seizure memo, arrest memo etc. prepared by
the Investigating Officer on the spot or during the course of investigation
are also primary evidence within the meaning of Section 62 of the
Evidence Act, carrying the same evidentiary value as any other primary
evidence. Such primary evidence with regard to Search and Seizure of the
contraband substance could not be overlooked merely because some
lapse or non-compliance is found of Section 52A of the Act.â€
12. The Apex Court further went on to hold that in the decision rendered
in case of Union of India vs. Mohanlal and Another (2016) 3 SCC 379,
the issue of pilferage of contraband was the main issue. The prime focal
in case of Mohanlal (supra) was disposal of seized contraband goods as
contemplated in Section 52A. Relevant paras 34 and 35 of the judgment in
Kashif (supra) are extracted here as under :-
“34. In our opinion reliance placed by the High Court on the decision
of this Court in Union of India Vs. Mohanlal and Another (2016) 3 SCC
379, is thoroughly misplaced. In the said case, the issue of pilferage of
contraband was the main issue. The Court after noticing the non-
compliance of the procedure laid down in the Standing Order No. 1 of 89
dated 13.06.1989, and the possibility of the pilferage of contraband goods
and their return to the market place for circulation, had appointed an
amicus curiae for making a realistic review of the procedure for search,
disposal or destruction of the narcotics and remedial steps that need to be
taken to plug the loopholes, if any. The Court, thereafter, had raised the
queries with regard to the seizure, storage, disposal/destruction and also
with regard to the judicial supervision in respect of the seized narcotic
drugs and psychotropic substances. The prime focal in case of Mohanlal
was the disposal of seized contraband goods as contemplated in Section
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                             20


52A. Though it held that the process of drawing samples has to be done in
presence of and under the supervision of the Magistrate, it nowhere held
that non-compliance or delayed compliance of the procedure prescribed
under Section 52A (2) would vitiate the trial or would entitle the accused
to be released on bail.
35. None of the provisions in the Act prohibits sample to be taken on the
spot at the time of seizure, much less Section 52A of the said Act. On the
contrary, as per the procedure laid down in the Standing Orders and
Notifications issued by the NCB and the Central Government before and
after the insertion of Section 52A till the Rules of 2022 were framed, the
concerned officer was required to take samples of the seized contraband
substances on the spot of recovery in duplicate in presence of the Panch
witnesses and the person in whose possession the drug or substance
recovered, by drawing a Panchnama. It was only with regard to the
remnant substance, the procedure for disposal of the said substance was
required to be followed as prescribed in Section 52A.â€
13. While considering the recent judgment of Apex Court rendered in
case of Simarnjit vs. State of Punjab (Criminal Appeal No.1443/2023);
Yusuf @ Asif vs. State 2023 SCC Online SC 1328 and Mohammed Khalid
and Another vs. State of Telangana (2024) 5 SCC 393; the Apex Court in
Kashif (supra) in paras 36, 37 and 38 held as under :-
“36. At this stage, we must deal with the recent judgments in case of
Simarnjit vs. State of Punjab, (Criminal Appeal No.1443/2023), in case of
Yusuf @ Asif vs. State (2023 SCC Online SC 1328), and in case of
Mohammed Khalid and Another vs. State of Telangana ((2024) 5 SCC
393) in which the convictions have been set aside by this Court on finding
non-compliance of Section 52A and relying upon the observations made
in case of Mohanlal. Apart from the fact that the said cases have been
decided on the facts of each case, none of the judgments has proposed to
lay down any law either with regard to Section 52A or on the issue of
admissibility of any other evidence collected during the course of trial
under the NDPS Act. Therefore, we have considered the legislative
history of Section 52A and other Statutory Standing Orders as also the
judicial pronouncements, which clearly lead to an inevitable conclusion
that delayed compliance or noncompliance of Section 52A neither vitiates
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                             21


the trial affecting conviction nor can be a sole ground to seek bail. In our
opinion, the decisions of Constitution Benches in case of Pooran Mal and
Baldev Singh must take precedence over any observations made in the
judgments made by the benches of lesser strength, which are made
without considering the scheme, purport and object of the Act and also
without considering the binding precedents.
37. It hardly needs to be reiterated that every law is designed to further
ends of justice and not to frustrate it on mere technicalities. If the
language of a Statute in its ordinary meaning and grammatical
construction leads a manifest contradiction of the apparent purpose of the
enactment, a construction may be put upon it which modifies the meaning
of the words, or even the structure of the sentence. It is equally settled
legal position that where the main object and intention of a statute are
clear, it must not be reduced to a nullity by the draftsman’s
unskillfulness or ignorance of the law. In Maxwell on Interpretation of
Statutes, Tenth Edition at page 229, the following passage is found: -
“Where the language of a statute, in its ordinary meaning and
grammatical construction, leads to a manifest contradiction of the
apparent purpose of the enactment, or to some inconvenience or
absurdity, hardship or injustice, presumably not intended, a construction
may be put upon it which modifies the meaning of the words, and even the
structure of the sentence. … Where the main object and intention of a
statute are clear, it must not be reduced to a nullity by the draftsman's
unskilfulness or ignorance of the law, except in a case of necessity, or the
absolute intractability of the language used.â€
38. As observed by this Court in K.P. Varghese vs. Income Tax Officer,
Ernakulam and Another (1981) 4 SCC 173, a statutory provision must be
so construed, if it is possible, that absurdity and mischief may be avoided.
Where the plain and literal interpretation of statutory provision produces
a manifestly absurd and unjust result, the Court may modify the language
used by the Legislature or even do some violence to it, so as to achieve
the obvious intention of the Legislature and produce a rational
construction and just result.â€
14. The Apex Court, in para 39 of the judgment, had laid down the
guidelines in regard to consideration of bail application in cases under
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                             22


the NDPS Act and the purpose of Section 52A and disposal of seized
narcotics drugs and psychotropic substances, which are extracted hereas
under :-
“39. The upshot of the above discussion may be summarized as under:
(I) The provisions of NDPS Act are required to be interpreted keeping in
mind the scheme, object and purpose of the Act; as also the impact on the
society as a whole. It has to be interpreted literally and not liberally,
which may ultimately frustrate the object, purpose and Preamble of the
Act.
(ii) While considering the application for bail, the Court must bear in
mind the provisions of Section 37 of the NDPS Act which are mandatory
in nature. Recording of findings as mandated in Section 37 is sine qua
non is known for granting bail to the accused involved in the offences
under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure
for disposal of seized Narcotic Drugs and Psychotropic Substances, was
to ensure the early disposal of the seized contraband drugs and
substances. It was inserted in 1989 as one of the measures to implement
and to give effect to the International Conventions on the Narcotic drugs
and psychotropic substances.
(iv) 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.
(v) Any procedural irregularity or illegality found to have been committed
in conducting the search and seizure during the course of investigation or
thereafter, would by itself not make the entire evidence collected during
the course of investigation, inadmissible. The Court would have to
consider all the circumstances and find out whether any serious prejudice
has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would
neither vitiate the trial nor would entitle the accused to be released on
bail. The Court will have to consider other circumstances and the other
primary evidence collected during the course of investigation, as also the
                                                               BAIL No. 45090 of 2025
                                   23


     statutory presumption permissible under Section 54 of the NDPS Act.â€
     15. The argument raised from the applicant’s side stands adjudicated
     on the basis of guidelines summarized by the Apex Court in the recent
     judgment rendered in case of Kashif (supra).
     16. Further the judgment relied upon by the counsel for the applicant on
     the bail order granted by coordinate Bench of this Court to the co-
     accused Nattu Yadav cannot be taken into consideration by this Court as
     the coordinate Bench of this Court while granting bail to the co-accused
     has not considered the recent judgment rendered in case of Kashif (supra)
     wherein it has been held that while granting bail, satisfaction Section 37
     of N.D.P.S. Act has to be recorded by the Court.
     17. In view of above, the second bail application is stands rejected."

6. Learned counsel for the applicant submits that other three co-accused
have been granted bail by the Co-ordinate Bench in Criminal Misc. Bail
Application No(s).9893 of 2024, 14662 of 2024 and 24258 of 2024,
decided on 10.04.2025, 28.05.2025 and 10.07.2025 respectively. He
further submits that one of the co-accused Mangal Yadav has been
enlarged on bail by Hon'ble Apex Court in Criminal Appeal No.4690 of
2025 on 31.10.2025. Apart from the said argument, no other argument has
been made on behalf of the applicant.

7. Learned A.G.A. submits that the bail granted to Mangal Yadav was on
the ground that he was not apprehended on the spot while the applicant
along with other co-accused has been apprehended on the spot. According
to him, parity as claimed by the applicant cannot be granted. He further
submits that the first bail application was rejected by this Court in the
year 2024, and it seems that the order was not placed before the Co-
ordinate Bench while granting bail to Natthu Yadav, Nagendra Singh and
Munesh @ Manish Pal. He further submits that the judgment rendered by
Hon'ble Apex Court in case of Narcotics Control Bureau vs. Kashif in
Criminal Appeal No.5544 of 2024 arising out of Special Leave
Petition (Crl.) No.12120 of 2024, was also not brought to the notice of
the Co-ordinate Bench.

8. I have heard learned counsel for the parties and perused the material on
record.
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                                                                   24


                                    9. I find that the recovery of the alleged contraband Ganja from the
                                    applicant is above the commercial quantity i.e. 50.800 kgs. The Hon'ble
                                    Apex Court in Kashif (supra) has already laid down the guidelines in
                                    respect of dealing with bail application under the NDPS Act. I find that no
                                    satisfaction can be recorded under Section 37 of the NDPS for enlarging
                                    the applicant on bail who was arrested on the spot with huge quantity of
                                    50.800 Kgs. of Ganja. Police party cannot plant such huge quantity of
                                    Ganja. Moreover, the Apex Court while enlarging one Mangal Yadav had
                                    clearly observed that he was not arrested on the spot and thus, he was
                                    granted bail.

                                    10. In the instant case, the applicant was arrested on the spot with 50.800
                                    Kgs. Ganja and thus no parity as claimed by him can be extended to him.

                                    11. In view of above, the third bail application is stands rejected.



                                                                                    (Rohit Ranjan Agarwal,J.)
                                    May 6, 2026
                                    SK Goswami




Digitally signed by :-
SHIVAKANT GOSWAMI
High Court of Judicature at Allahabad