Allahabad High Court

SHOKEENversusSTATE OF U.P.

Decided: 28 September 2026
Bench: RAJIV LOCHAN SHUKLA

Holding

The Court dismissed the anticipatory bail application because the twin conditions under Section 37 of the NDPS Act were not satisfied.

Summary

The applicant sought anticipatory bail under Section 482 of the CrPC in an NDPS case (Crime No. 172 of 2026) alleging false implication after his name appeared in a co‑accused's confessional statement. The co‑accused was linked to the recovery of 261 g of smack, exceeding the commercial quantity threshold. The State opposed bail, highlighting the applicant’s prior NDPS cases and the seriousness of the offence. The Court examined the mandatory twin conditions of Section 37 of the NDPS Act—reasonable grounds to believe the accused is not guilty and that he will not commit further offences—citing Supreme Court precedents that bail in commercial‑quantity cases is the exception, not the rule. Finding that these conditions were not satisfied and that the applicant’s claim of false implication was merely prima facie, the Court dismissed the anticipatory bail application.

Issues considered

Whether anticipatory bail can be granted in an NDPS case involving commercial quantity of narcotics.
Whether the applicant satisfies the twin conditions of Section 37 of the NDPS Act for bail.
Whether the applicant’s prior NDPS convictions preclude grant of anticipatory bail.

Legislation cited

Code of Criminal Procedure, 1973
Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 21, 29, 37, 50, 8

Subjects

anticipatory bail
NDPS Act
commercial quantity
Section 37
repeat offender
false implication
high court

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No. -
9888 of 2026

Shokeen
.....Applicant(s)

Versus

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

Counsel for Applicant(s) : Chandra Prakash, Muskan Pandey
Counsel for Opposite Party(s) : G.A.

Court No. - 71
HON'BLE RAJIV LOCHAN SHUKLA, J.

1. Heard the Learned counsel for the applicant and Learned AGA
for the State.

2. The present anticipatory bail application has been filed on behalf
of the applicant in Case Crime No. 172 of 2026, under Section
8/21/29 of N.D.P.S. Act, Police Station- Nakud, District
Saharanpur, with a prayer to enlarge him on anticipatory bail as the
applicant apprehends his arrest in the abovementioned case.

3. The Learned counsel for the applicant has contended that the
applicant has been falsely implicated in the present case. The
name of the applicant surfaced in the confessional statement of co-
accused Mobeen, from whom 261 grams of smack was
recovered. The Learned counsel for the applicant has further
contended that the wife of the applicant was molested by co-
accused Mobeen, who was arrested by the police, and it is only on
account of the said enmity that he has taken the name of the
applicant. The Learned counsel for the applicant has further
contended that even the recovery made from the co-accused is not
in accordance with Section 50 of the NDPS Act. The co-accused
Mobeen has been granted regular bail by this Court in Criminal
Misc. Bail No. 16893 of 2026. The Learned counsel for the
applicant has lastly contended that apart from the present case,
the applicant has criminal history of two other cases, but is not a
previous convict.

4. The Learned AGA has opposed the prayer for bail and has
contended that apart from the present case, the applicant has
NABAIL No. 9888 of 2026
2

criminal history of two other cases under the NDPS Act. Being a
repeat offender, he may not be considered for grant of anticipatory
bail. He further contended that the investigation is still pending.
The name of the applicant has surfaced in the statement of the co-
accused Mobeen and the applicant may be required for custodial
interrogation and further recoveries.

5. I have considered the submissions made by the learned counsel
for the parties.

6. The offence in question involves 261 grams of smack, which is
more than the commercial quantity prescribed for heroin, which is
250 grams. The twin requirements of Section 37 of the N.D.P.S.
Act are required to be fulfilled before granting anticipatory bail or
regular bail to any accused charged under the N.D.P.S. Act. For
ready reference, Section 37 of the N.D.P.S. Act is reproduced
hereinbelow:-

"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 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."

7. This Court, in the case of Ikram alias Kala vs. State of U.P.
passed in NABAIL No. 5177; Neutral Citation No. -
2026:AHC:166718, while considering the grant of anticipatory bail
in offences under the N.D.P.S. Act involving commercial quantity,
has held that before grant of anticipatory bail, the twin
NABAIL No. 9888 of 2026
3

requirements under Section 37 of the NDPS Act are required to be
fulfilled. The relevant paragraphs of the above-mentioned judgment
are reproduced hereinunder:-

"32. The accusation in the present case is with regard to the
commercial quantity. Once the bail is opposed to a person
accused of the enumerated offences, in case, the Court
proposes to grant bail to such a person, two conditions are to
be mandatorily satisfied in addition to the normal
requirements under the provisions of the Code of Criminal
Procedure, 1973 or any other enactment, (i) the Court must
be satisfied that there are reasonable grounds for believing
that the person is not guilty of such offence.

33. In State of M.P. Vs. Kajad, (2001) 7 SCC 673, the
Hon'ble Supreme Court has held that negation of bail is the
rule and its grant an exception under (ii) of clause (b) of
Section 37(1) of the Act, 1985.

34. In Criminal Appeal No.(s) 154-157 of 2020, State of
Kerala Vs. Rajesh and others, the Hon'ble Supreme Court
has held on 24.01.2020 that the expression "reasonable
grounds" means something more than prima-facie grounds,
and (ii) that person is not likely to commit any offence while
on bail. It is the mandate of the legislature which is required
to be followed. The non-obstante clause with which this
Section starts should be given its due meaning and clearly it
is intended to restrict the powers to grant bail. To check the
menace of dangers drugs and psychotropic substances
flooding the market, the Parliament has provided that the
person accused of the offences under the Act should not be
released on bail during the trial unless the mandatory
conditions provided under Section 37 of the Act, 1985 are
satisfied. The Hon'ble Supreme Court has further held that
liberal approach in the matter of bail under the NDPS Act, is
uncalled for. Therefore, it is quite clear that an order of
bail/anticipatory bail cannot be granted in an arbitrary or
fanciful manner.

35. The learned Senior Counsel has failed to produce any
authority of the Apex Court, wherein the anticipatory bail
was granted to an accused, involved in commercial quantity
of contraband material. On the other hand, there are various
NABAIL No. 9888 of 2026
4

authorities of the Supreme Court, wherein it was held that
bail or anticipatory bail ought not to be granted to the
accused who was found to be involved in the offences of
commercial quantity of the contraband material.

36. As per the Article 141 of the Constitution of India, the
law declared by the Supreme Court shall be binding on all
courts within the territory of India. Article 141 leaves no
room for ambiguity or dual interpretation. The expression
"all courts" include every High Court, District Courts, Trial
Courts and other Tribunals, across the territory of India.
Where a High Court decision conflicts with a judgment of the
Supreme Court, the law declared by the Supreme Court
unconditionally prevails. Therefore, this Court follows the
decision of the Supreme Court wherein it has been held that
the Court ought not to grant bail unless twin conditions of
Section 37 of N.D.P.S. Act are satisfied. This Court has no
reason to believe that the applicant is not guilty of such
offence and further that he will not commit any offence under
the Act, if released on bail."

8. In the present case, the applicant has criminal history of other
cases under the N.D.P.S. Act. The contraband recovered in the
present case is more than the commercial quantity prescribed. The
co-accused Saddam had filed anticipatory bail before this Court
and he was permitted to withdraw his application and apply for
regular bail. The reason given by the applicant for his false
implication, in the prima facie opinion of the Court, cannot be
considered at this stage and may form part of the defence of the
applicant at the appropriate stage.

9. At present, Section 37 of the N.D.P.S. Act requires this Court to
record a satisfaction that there are reasonable grounds for
believing that the applicant has not committed the offence and if he
is enlarged on bail, he is not likely to commit any such offence
under the NDPS act in the near future. This Court is unable to
record such satisfaction at this stage.

10. Accordingly, the application is hereby dismissed.

September 29, 2026/Junaid

(Rajiv Lochan Shukla,J.)

Digitally signed by :-
JUNAID AHMAD
High Court of Judicature at Allahabad

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