SAHDAV KESARversusUNION OF INDIA

         HIGH COURT OF JUDICATURE AT ALLAHABAD
         CRIMINAL MISC. BAIL APPLICATION No. - 46091 of 2025

Sahdav Kesar
                                                          .....Applicant(s)
                                  Versus

Union of India
                                                              .....Opposite
                                                                    Party(s)

Counsel for Applicant(s)      : Abhishek Srivastava, Akhilesh Kumar
                                Mishra, Nikil Pathak
Counsel for Opposite Party(s) : Krishna Agarawal

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

     Heard Shri Nikil Pathak, learned counsel for the applicant, Shri
     Krishna Agarwal, learned counsel for the N.C.B., and perused the
     record.

     This bail application under Section 483 of Bharatiya Nagarik
     Suraksha Sanhita, 2023 has been moved on behalf of accused-
     applicant, Sahdav Kesar, seeking enlargement on bail in Case
     Crime No. 62 of 2025, under Sections 8/20, 29, 42 of the
     Narcotic Drugs and Psychotropic Substances Act, 1985 Police
     Station Kotwali Lalitpur, District Lalitpur, during the pendency
     of the trial before the Court below. The bail application of the
     applicant before the Court below has been rejected by the
     learned Addl. District & Sessions Judge/Special Judge
     (SC&ST Act), Lalitpur, vide order dated 18.10.2025 and the
     applicant is languishing in jail since 27.8.2025.

     Learned counsel for the applicant submits that the as per the
     case of prosecution, 86.400 Kg. Ganja was recovered from the
     car in which applicant along with co-accused persons was
     travelling. The applicant has not been found of the conscious
     possession of the contraband. The prosecution is stated to have
     received information of the alleged trafficking on 24.8.2025
     and search and seizure team left Neemach, Madhya Pradesh at
     5:30 PM on 24.8.2025 and reached Bighkhet Toll Plaza at 2:30
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                         2


AM on 25.8.2025. It has been argued that Search Team
completed 600 Km., distance only in 09 hours, which is
unbelievable. It is further submitted that applicant along with
other co-accused persons was intercepted at 08:50 AM on
25.8.2025 i.e. after 6 hours of arrival of team at the Bighakhet
Toll Plaza. Learned counsel for the applicant submits that how
the raiding team came to know that after 06 hours, the
applicant and co-accused will reach at that place is itself a
mystery. Learned counsel for the applicant further submits that
seizure proceedings started at 11:00 AM i.e. with the delay of
02 hours. The applicant was arrested at 8:50 AM and no
reasons have been stated as to why the seizure proceedings
started with the delay of 02 hours.

Learned counsel for the applicant submits that entire recovery
and seizure proceeding was completed by 03:20 PM and the
prosecution had sufficient time to produce the applicant before
the Magistrate, but neither the applicant was produced before
the Magistrate nor was taken to the nearby Police Station for
GD entry. The applicant along with the other co-accused
persons were taken to Gwalior Office instead which is 200 Km
away from the place of seizure.

Learned counsel for the applicant submits that the Team had
left for Gwalior at 3:40 PM and reached at Gwalior Office at
5:40 PM and completed the distance of 200 Km, only in 02
hours and no GD entry was made in the nearest Police Station
of Gwalior Office.

Learned counsel for the applicant next contends that applicant
and the co-accused were illegally detained by the prosecution
till 26.8.2025, but were not produced before the Magistrate,
which is in complete violation of law. Learned counsel for the
applicant submits that the intimation regarding arrest and
detention was given to the brother of the applicant on
26.8.2025, but no time regarding giving of information has
been disclosed by the prosecution. In order to buttress his
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                             3


submission, learned counsel for the applicant has placed
reliance upon the decision of Apex Court in the case of Shri D.
K. Basu, Ashok K. Johri versus State of West Bengal, State of
U.P. reported in AIR 1997 Supreme Court 610 wherein at
Page 14 in Para 5, it is held as under:-

     "(5) The person arrested must be made aware of this right to
     have someone informed of his arrest or detention as soon as
     he put under arrest or is detained."

Learned counsel for the applicant next contends that applicant
was produced before the Magistrate in Lalitpur for remand on
27.8.2025. Learned counsel for the applicant submits that entire
recovery proceedings and subsequent proceedings conducted by
the CBN Officers are merely paper work and applicant has been
falsely implicated in this case only to save the real culprits. The
recovery/seizure proceedings is ante dated and ante timed on
account of non explanation illegal custody and the applicant
deserves to be enlarged on bail.

Controverting the submissions of learned counsel for the
applicant, Shri Krishna Agarwal, learned counsel for the N.C.B.,
submits that on the basis of secret information, applicant along
with co-accused was intercepted and apprehended in Swift Car
and commercial quantity of contraband i.e. 86.400 Kg. Ganja was
recovered. The applicant along with other co-accused persons in
their statements recorded under Section 67 of the Act accepted
the illegal possession and transportation of Ganja.

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 86.400 Kg of Ganja was alleged to
have been recovered from the vehicle in which applicant along
with co-accused were travelling, which is more than commercial
quantity.
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                              4


This court has considered the recent case of Union of India Vs
Md. Nawaz Khan, reported in, AIR 2021 SC 447, which is a case
where contraband was concealed in a bag and it was held by
Supreme Court that factum of absence of possession of
contraband by the accused in itself cannot be sole ground for
grant of bail. In paragraph nos. 20 & 29, it has been said as
under:-

     "20. Based on the above precedent, the test which the High
     Court and this Court are required to apply while granting
     bail is whether there are reasonable grounds to believe that
     the accused has not committed an offence and whether he is
     likely to commit any offence while on bail. Given the
     seriousness of offences punishable under the NDPS Act and
     in order to curb the menace of drug-trafficking in the
     country, stringent parameters for the grant of bail under the
     NDPS Act have been prescribed.

     29. In the complaint that was filed on 16 October 2019 it is
     alleged that at about 1400 hours on 26 March 2019,
     information was received that between 1500-1700 hours on
     the same day, the three accused persons would be reaching
     Uttar Pradesh. The complaint states that the information was
     immediately reduced to writing. Therefore, the contention
     that Section 42 of the NDPS Act was not complied with is
     prima facie misplaced. The question is one that should be
     raised in the course of the trial."



The Hon'ble Apex Court further in the case of Md. Nawaz Khan
(supra) in paragraph nos. 24 & 25 has also stated as under:

     "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
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                             5


     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 the conclusion that the
accused is not guilty of the offence. The fact that accused was not
in physical possession of contraband would not be enough to
conclude that accused is not guilty. The contention that recovery
was not from conscious possession of the accused is noted to be
rejected in view of recent decision of Supreme Court in Md.
Nawaz Khan's case (supra).

In the case of State vs. Syed Amir Hasnain, (2002) 10 SCC 88,
the Hon'ble Apex Court has held in view of the two judgments of
this Court in Union of India Vs Ram Samujh, (1999) 9 SCC 382
and Union of India Vs Aharwa Deen, (2000) 9 SCC 382, even
the High Court would be bound by the provisions of Section 37
of the NDPS Act and would not be entitled to release the accused
under the provisions of the NDPS Act unless the provisions of
Section 37 of the Act are satisfied.
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                            6


Learned counsel for the applicant has pressed the bail plea
primarily on the ground that the arrest and seizure as against
the applicant is vitiated on the ground of not stating the
grounds of arrest to the applicant. The Court is of the view that
though the seizure may be illegal but the incriminating material
recovered cannot be said to be inadmissible. The seizure of
articles cannot be said to be vitiated. The Apex Court recently
in the case of Dr. Naresh Kumar Garg versus State of
Haryana and others reported in 2026 INSC 176 held that
while search may be illegal, the materials or evidence gathered
or collected in the course of such search can still be acted or
relied upon subject to the rule of relevancy and test of
admissibility.

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.
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                            7


The Apex Court recently in the case of Bharat Ambale versus
State of Chattisgarh, reported in [2025 INSC 78] while
dealing with the plea that conviction stood vitiated on account
of non compliance of Section 52A of the NDPS Act in Para 50
of its judgment has held as under:-

     "50.We summarize our final conclusion as under: -

     (I) Although Section 52A is primarily for the disposal and
     destruction of seized contraband in a safe manner yet it
     extends beyond the immediate context of drug disposal, as it
     serves a broader purpose of also introducing procedural
     safeguards in the treatment of narcotics substance after
     seizure inasmuch as it provides for the preparation of
     inventories, taking of photographs of the seized substances
     and drawing samples therefrom in the presence and with the
     certification of a magistrate. Mere drawing of samples in
     presence of a gazetted officer would not constitute sufficient
     compliance of the mandate under Section 52A sub-section (2)
     of the NDPS Act.

     (II) Although, there is no mandate that the drawing of
     samples from the seized substance must take place at the time
     of seizure as held in Mohanlal (supra), yet we are of the
     opinion that the process of inventorying, photographing and
     drawing samples of the seized substance shall as far as
     possible, take place in the presence of the accused, though
     the same may not be done at the very spot of seizure.

     (III) Any inventory, photographs or samples of seized
     substance prepared in substantial compliance of the
     procedure prescribed under Section 52A of the NDPS Act
     and the Rules / Standing Order(s) thereunder would have to
     be mandatorily treated as primary evidence as per Section
     52A sub-section (4) of the NDPS Act, irrespective of whether
     the substance in original is actually produced before the
     court or not.
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                          8


(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 prosecution in proving the same, it will
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                             9


     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, more than the commercial quantity of
contraband was recovered during interception and applicant
along with co-accused were arrested from the spot. There is
every likelihood that the applicant shall indulge in similar
crime, if enlarged on bail.

In the light of the facts and circumstances of the present case, it
would be inappropriate to discuss the evidence in depth at this
stage because it is likely to influence the trial of the accused. But,
from the perusal of the evidences, collected during investigation
so far, prima facie, the involvement of the accused in the present
case cannot be ruled out. No reason is found to falsely implicate
the applicant/accused. Therefore, there is no good ground to
release the applicant-accused on bail at this stage. All the
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                                                                        10


                                            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.)
                                    March 9, 2026
                                    Ravi Prakash




Digitally signed by :-
RAVI PRAKASH
High Court of Judicature at Allahabad