# Bajarangi Singh Yadav v. State of U.P

- **Citation:** (2025) 1 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-17
- **Case number:** Criminal Misc. Bail Application No. 23378 of 2024
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bajarangi-singh-yadav-v-state-of-u-p-52865
- **Pages:** 14

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8/21 & 37 - Bail - As per
prosecution story, contraband (Heroine)
recovered from vehicle in four packets, total
weighting 1 kg, vehicle was being driven by
applicant/driver in which two other persons
were also sitting - When police intercepted
vehicle, search was conducted as per
established procedure and three packets of
250 gms. each were found from pocket of all
three persons sitting in vehicle & anr.packet
containing 250 gms contraband (Heroine)
was found beneath seat of applicant -
Applicant
submitted
that
necessary
compliance u/s 50 and 52-A of Act were not
done and sample were not prepared and
sent for chemical examination - Co-accused
already enlarged on bail and languishing in
jail since 28.03.2024. (Para 3,4)

Held, argument raised by applicant stands
adjudicated
on
basis
of
guidelines
summarized by Apex Court in judgment
rendered in case of Kashif (infra). (Para 27)

Looking to huge recovery of contraband
(Heroine)
from
joint
possession
of
applicant
and
co-accused,
also
from
alleged vehicle, no ground to release
applicant on bail - Five other criminal
cases registered against applicant and
recovery made was above commercial
quantify. (Para 28)

Bail application rejected. (E-13)

List of Cases cited:

## Text

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4 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 1 ILRA 4
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Criminal Misc. Bail Application No. 23378 of
2024

Bajarangi Singh Yadav ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
P.K. Singh, Praveen Kumar Singh, Sunil
Kumar Pandey

Counsel for the Opposite Party:
G.A.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8/21 & 37 - Bail - As per
prosecution story, contraband (Heroine)
recovered from vehicle in four packets, total
weighting 1 kg, vehicle was being driven by
applicant/driver in which two other persons
were also sitting - When police intercepted
vehicle, search was conducted as per
established procedure and three packets of
250 gms. each were found from pocket of all
three persons sitting in vehicle & anr.packet
containing 250 gms contraband (Heroine)
was found beneath seat of applicant -
Applicant
submitted
that
necessary
compliance u/s 50 and 52-A of Act were not
done and sample were not prepared and
sent for chemical examination - Co-accused
already enlarged on bail and languishing in
jail since 28.03.2024. (Para 3,4)

Held, argument raised by applicant stands
adjudicated
on
basis
of
guidelines
summarized by Apex Court in judgment
rendered in case of Kashif (infra). (Para 27)

Looking to huge recovery of contraband
(Heroine)
from
joint
possession
of
applicant
and
co-accused,
also
from
alleged vehicle, no ground to release
applicant on bail - Five other criminal
cases registered against applicant and
recovery made was above commercial
quantify. (Para 28)

Bail application rejected. (E-13)

List of Cases cited:

1. Simarnjit Singh Vs St. of Pun., Criminal
Appeal No.1443/2023, 2023 Supreme (SC) 658

2. Mangilal Vs St. of M. P., 2023 Supreme (SC)
703

3. U.O.I. Vs Mohanlal & anr., 2016 Supreme (SC) 82

4. U.O.I. Vs Ram Samujh & anr., (1999) 9 SCC
429, (Para 7, 8)

5. U.O.I. Vs Shiv Shanker Kesari, (2007) 7 SCC
798, (Para 6, 7)

6. U.O.I. Vs Rattan Mallik @ Habul, (2009) 1
SCC (Cri) 831, (Para 14)

7. St. of Kerala Etc. Vs Rajesh Etc., AIR 2020 SC
721, (Para 20, 21)

8. U.O.I.Vs Prateek Shukla AIR 2021 SC 1509

9. St. (NCT of Delhi) Narcotics Control Bureau
Vs Lokesh Chadha, (2021) 5 SCC 724

10. U.O.I.through Narcotics Control Bureau,
Lucknow Vs Mohd. Nawaz Khan, (2021) 10 SCC
100, (Para 23, 25, 26, 28, 29)

11. Megh Singh Vs St. of Pun., 2003 CRI. L.J.
4329, (Para 9 to 13,16)

12. Dehal Singh Vs St. of H. P., 2011 (72) ACC 661

13. Narcotics Control Bureau Vs Kashif, Criminal
Appeal No.5544 of 2024, arising out of SLP
(Crl.) No.12120 of 2024, decided on 20.12.2024,
(Para 20, 21, 23, 24, 31 to 39)

14. Pooran Mal Vs Director of Inspection
(Investigation) New Delhi & ors., (1974) 1 SCC
345
1 All. Bajarangi Singh Yadav Vs. State of U.P.
5
15. St. of Punjab Vs Baldev Singh, (1999) 6 SCC
172

16. St. of H.P. Vs Pirthi Chand & anr., (1996) 2
SCC 37

17. St. of Pun. Vs Makhan Chand, (2004) 3 SCC
453

18. U.O.I. Vs Mohanlal & anr., (2016) 3 SCC 379

19. Yusuf @ Asif Vs St., 2023 SCC Online SC
1328

20.
Mohammed
Khalid
&
anr.Vs
St.
of
Telangana, (2024) 5 SCC 393

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

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. 130 of 2024, under Section 8/21
of
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (hereinafter referred
to as "NDPS Act"), Police Station-
Kotwali, District- Ghazipur, during the
pendency of trial.

3. The prosecution story, as unfolded
from the First Information Report (FIR) is
that
Contraband
(Heroine)
has
been
recovered from Scorpio No.UP 32 LK4587
in four packets, total weighting 1 kg. The
vehicle in question was being driven by the
applicant in which two other persons were
also
sitting.
When
the
police
had
intercepted the vehicle, the search was
conducted as per the established procedure
and three packets of 250 gms. Each were
found from the pocket of all the three
persons sitting in the scorpio vehicle and
another
packet
containing
250
gms
Contraband (Heroine) was found beneath
the seat of the applicant who was driving
the vehicle.

4. Learned counsel for the applicant
submitted that the applicant is Driver of the
said vehicle and has no concerned with the
aforesaid Contraband, which is alleged to
have been recovered from the vehicle. It is
further contended that the applicant has a
criminal history of 5 cases in which he is
on bail. It is next contended that necessary
compliance under Section 50 and 52-A of
the Act were not done and the sample were
not prepared and sent for chemical
examination. The other two accused have
already been enlarged on bail. It was lastly
contended that the applicant is languishing
in jail since 28.03.2024. Reliance has been
placed upon decision of Apex Court
rendered in Simarnjit Singh vs. State of
Punjab
2023
Supreme
(SC)
658;
Mangilal vs. State of Madhya Pradesh
2023 Supreme (SC) 703; and, Union of
India
vs.
Mohanlal
& Anr.
2016
Supreme (SC) 82.

5. Learned A.G.A. has opposed the
bail application and submitted that the
applicant was apprehended on spot along
with two other co-accused who were
carrying 1 kg. of Contraband (Heroine).
The recovered quantity from applicant is
well above the commercial quantity. It is
further submitted that the recovery was
made from the vehicle and it amounts to
conscious
possession
and
necessary
compliance was done. He further submitted
that the sample of the recovered contraband
was sent of chemical analysis and the
report of FSL had come wherein the
recovered material was found to be
Contraband (Heroine).

6. I have heard learned counsel for the
parties and perused the material on record.
6 INDIAN LAW REPORTS ALLAHABAD SERIES

7. This is a case where contraband
(Heroine) amounting to 1 kg. has been
recovered from the possession of the
applicant and other co-accused.

8. Section 37 of the NDPS Act
governs the field for grant of bail in
offences which are cognizable and nonbailable. 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
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."

9.
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.

10. 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
proliferating
and
booming devastating menace, causing
1 All. Bajarangi Singh Yadav Vs. State of U.P.
7
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."

11. 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."

12. 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 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."

13. 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 nonobstante clause. The operative part of the
said section is in the negative form
prescribing the enlargement of bail to any
8 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. 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.

15.
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."

16. 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 drugtrafficking
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
1 All. Bajarangi Singh Yadav Vs. State of U.P.
9
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 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
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.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

....

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."

17. 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 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.
1 All. Bajarangi Singh Yadav Vs. State of U.P.
11
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."

18. 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 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.

19. Reliance placed by applicant's
counsel on the judgments of Apex Court is
of no help as the State has come with the
case that necessary compliance of Section
50 of the Act has been done and as per
report of FSL, Contraband recovered was
found to be Heroine.

20. 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 datd 15.03.1988. The necessity to
insert Section 52A arose in view of
International Convention of 1988 held by
United Nations.

21. 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.

22.
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,
12 INDIAN LAW REPORTS ALLAHABAD SERIES
substitution, constraints of proper storage
space and other relevant considerations.
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, subsection (2) of Section 52A specifies the
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
1 All. Bajarangi Singh Yadav Vs. State of U.P.
13
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 noncompliance 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."

23. 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 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)
14 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 noncompliance 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."

24. 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 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 noncompliance 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
1 All. Bajarangi Singh Yadav Vs. State of U.P.
15
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."

25. 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 noncompliance 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 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. ...