# Randhir v. State of U.P

- **Citation:** (2025) 9 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-04
- **Case number:** Criminal Misc. Bail Application No. 8184 of 2025
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/randhir-v-state-of-u-p-53857
- **Pages:** 19

## Headnote

G.A.

ISSUE FOR CONSIDERATION
Whether
the
applicant,
against
whom
proceedings under Section 82 Cr.P.C. have been
initiated and who is alleged to be absconding, is
entitled to anticipatory bail?

HEADNOTES
Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8/20, 37, 50, 36A(4) - Code of
Criminal
Procedure, 1973
-
Sections
167(2), 173(2), 173(8), 293 - Second Bail
Application - first Bail was rejected - FIR -
alleged that, when police intercepted the
vehicle, 151.600 kgs of Ganja (commercial
quantity) was recovered
from the truck,
applicant was in, and both driver and cleaner
confessed to transporting it - applicant pleaded
that, he had no connection with the contraband,
has no criminal history, and claims procedural
lapses under Section 50 NDPS Act - Court found
that, a commercial quantity of Ganja was
recovered from the applicant and co-accused,
attracting the stringent bail restrictions under
Section 37 of the NDPS Act - Relying on
precedents such as Dharampal Singh, Mohan
Lal, and Rattan Mallik, the Court emphasized
that
"possession"
includes
conscious
and
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
constructive possession, and Section 50 applies
only to personal search, not vehicle searches -
Since the applicant was apprehended on the
spot, the contraband was confirmed by FSL
report, and compliance with Section 50 was
established, the Court held that no reasonable
ground existed to grant bail under Section 37
and accordingly Bail Application rejected. (Para
- 14, 19, 20, 21)
Application Rejected. (E-11)

CASE LAW CITED
Simarnjit Singh v. State of Punjab (2023 SC
658) - Mangilal v. State of Madhya Pradesh
(2023 SC 703) - Union of India v. Mohanlal &
Another (2016 SC 82) - Union of India Vs. Ram
Samujh and Anotehr (1999 vol. SCC 429) -
Union of India Vs. Shiv Shanker Kesari (2007
vol. 7 SCC 798) -Union of India Vs. Prateek
Shukla (AIR 2021 SC 1509) - State of Keral Etc.
Vs. Rajesh Etc. (AIR 2020 SC 721) - State (NCT
fo Delhi) Narcotics Control Bureau Vs. Lokesh
Chadha (2021 vol. 5 SCC 724) - Union of India
through Narcotics Control Bueau, Lucknow Vs.
Mohd. Nawaz Khan (2021 vol. 10 SCC 100) -
Dehal Singh Vs. State of Himachal Pradesh
(2011 vol. 72 ACC 661) - Dharampal Singh v.
State of Punjab (2010) 9 SCC 608 - Mohan Lal
v. State of Rajasthan (2015) 6 SCC 222 - Union
of India v. Rattan Mallik (2009) 2 SCC 624 -
Megh Singh v. State of Punjab, 2003 Cri LJ 4329
- Dehal Singh v. State of Himachal Pradesh,
2011 (72) ACC 661 - K. Veeraswami v. Union of
India (1991) 3 SCC 655 - Central Bureau of
Investigation vs. R.S. Pai & Another, 2002 SCC
(5) 82 - Divyas Bardeva vs. Narcotics Control
Bureau, Special Leave to Appeal (Crl) Nos.
11628/2022 - Mohd. Arbaz, etc vs. State of NCT
of Delhi, S.L.P. (Crl.) Nos. 8164-8166/20212002
SCC(5) 82 - Pankaj Gupta vs. Narcotics Control
Bureau, S.L.P. (Crl.) No. 12200/2023 - Bablu
Singh vs. State of M.P., S.L.P.(Crl) No. 631 of
2024; Babu Singh & Others vs. State of U.P.,
1978 Cr.L.J. 651 - Aleksander Kurganov vs.
State & Another, 2021 Supreme (Bomb) 658 -
Tajuddin @ Rotash vs. State of Haryana, 2021
Supreme (P & H) 1626 (online) / 2022 Cr.L.J.,
Page 1135 - Vinay Kumar @ Vicky vs. State of
Haryana, 2021 Cri CC 200 - Gurjant Singh vs.
State of Haryana, CRR 1868-2022(O&M) -
Faiyaz Miyan vs. State of Bihar, Criminal Misc.
No. 16906 of 2025, decided on 02.07.2025 -
Aman Dixit Vs. State of U.P., Criminal Misc. Bail
Application No. 11247 of 2021, decided on
12.11.2021 - Narcotics Control Bureau vs. Kashif
in Criminal Appeal No.5544 of 2024 arising out
of Special Leave Petition (Crl.) No.12120 of
2024 - Pooran Mal vs. Director of Inspection
(Investigation) New Delhi and others, (1974) 1
SCC 345 - State of Punjab vs. Baldev Singh
(1999) 6 SCC 172 - State of H.P. vs. Pirthi
Chand and Another (1996) 2 SCC 37 - State of
Punjab vs. Makhan Chand (2004) 3 SCC 453 - K.
Veeraswami vs. Union of India and Others :
(1991) 3 SCC 655 - Yusuf @ Asif vs. State 2023
SCC O

## Text

_Characters 0–39,650 of 65,902. This is a partial read: ask again with offset=39650 for what follows._

9 All. Randhir Vs. State of U.P.
1199
paragraphs, I am inclined to allow the
instant
anticipatory
bail
application.
Accordingly, it is allowed. In the event of
arrest, the applicant Anuj Sirohi @
Himanshu
Sirohi
be
released
on
anticipatory bail in the aforesaid case crime
till the conclusion of the trial on furnishing
a personal bond of Rs.1,00,000/- (Rs. One
Lakh) with two sureties each in the like
amount to the satisfaction of the court
concerned with the following conditions:-

(i) The applicant shall make
himself available for trial before the Court
concerned as and when date fixed.

(ii) The applicant shall provide his
mobile number and it is directed to always
keep open his mobile phone 24 hours and
cooperate in the trial and if Court concerned
requires some document, the applicant will
provide the same to the IO/Court concerned.

(iii) The applicant shall not directly
or indirectly make any inducement, threat or
promise to any person acquainted with the
facts of the case so as to dissuade from
disclosing such facts to the Court or to any
police officer;

(iv). The applicant shall not leave
India without previous permission of the Court
and if he has pass port, the same shall be
deposited by him before the court concerned.

19. In default of any of the conditions
by the applicant, the I.O. and learned AGA
are at liberty to file appropriate application
for cancellation of anticipatory bail granted
to the applicant.

20.
In
view
of
the
aforesaid
observations/direction,
the
instant
application is disposed off.

21. It is made clear that observations
made in the instant order is only for the
adjudication of the present application.
----------
(2025) 9 ILRA 1199
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Criminal Misc. Bail Application No. 8184 of 2025

Randhir ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Amber Khanna, Raj Kumar Khanna, Ram
Kripal, Sandal Khanna

Counsel for the Opposite Party:
G.A.

ISSUE FOR CONSIDERATION
Whether
the
applicant,
against
whom
proceedings under Section 82 Cr.P.C. have been
initiated and who is alleged to be absconding, is
entitled to anticipatory bail?

HEADNOTES
Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8/20, 37, 50, 36A(4) - Code of
Criminal
Procedure, 1973
-
Sections
167(2), 173(2), 173(8), 293 - Second Bail
Application - first Bail was rejected - FIR -
alleged that, when police intercepted the
vehicle, 151.600 kgs of Ganja (commercial
quantity) was recovered
from the truck,
applicant was in, and both driver and cleaner
confessed to transporting it - applicant pleaded
that, he had no connection with the contraband,
has no criminal history, and claims procedural
lapses under Section 50 NDPS Act - Court found
that, a commercial quantity of Ganja was
recovered from the applicant and co-accused,
attracting the stringent bail restrictions under
Section 37 of the NDPS Act - Relying on
precedents such as Dharampal Singh, Mohan
Lal, and Rattan Mallik, the Court emphasized
that
"possession"
includes
conscious
and
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
constructive possession, and Section 50 applies
only to personal search, not vehicle searches -
Since the applicant was apprehended on the
spot, the contraband was confirmed by FSL
report, and compliance with Section 50 was
established, the Court held that no reasonable
ground existed to grant bail under Section 37
and accordingly Bail Application rejected. (Para
- 14, 19, 20, 21)
Application Rejected. (E-11)

CASE LAW CITED
Simarnjit Singh v. State of Punjab (2023 SC
658) - Mangilal v. State of Madhya Pradesh
(2023 SC 703) - Union of India v. Mohanlal &
Another (2016 SC 82) - Union of India Vs. Ram
Samujh and Anotehr (1999 vol. SCC 429) -
Union of India Vs. Shiv Shanker Kesari (2007
vol. 7 SCC 798) -Union of India Vs. Prateek
Shukla (AIR 2021 SC 1509) - State of Keral Etc.
Vs. Rajesh Etc. (AIR 2020 SC 721) - State (NCT
fo Delhi) Narcotics Control Bureau Vs. Lokesh
Chadha (2021 vol. 5 SCC 724) - Union of India
through Narcotics Control Bueau, Lucknow Vs.
Mohd. Nawaz Khan (2021 vol. 10 SCC 100) -
Dehal Singh Vs. State of Himachal Pradesh
(2011 vol. 72 ACC 661) - Dharampal Singh v.
State of Punjab (2010) 9 SCC 608 - Mohan Lal
v. State of Rajasthan (2015) 6 SCC 222 - Union
of India v. Rattan Mallik (2009) 2 SCC 624 -
Megh Singh v. State of Punjab, 2003 Cri LJ 4329
- Dehal Singh v. State of Himachal Pradesh,
2011 (72) ACC 661 - K. Veeraswami v. Union of
India (1991) 3 SCC 655 - Central Bureau of
Investigation vs. R.S. Pai & Another, 2002 SCC
(5) 82 - Divyas Bardeva vs. Narcotics Control
Bureau, Special Leave to Appeal (Crl) Nos.
11628/2022 - Mohd. Arbaz, etc vs. State of NCT
of Delhi, S.L.P. (Crl.) Nos. 8164-8166/20212002
SCC(5) 82 - Pankaj Gupta vs. Narcotics Control
Bureau, S.L.P. (Crl.) No. 12200/2023 - Bablu
Singh vs. State of M.P., S.L.P.(Crl) No. 631 of
2024; Babu Singh & Others vs. State of U.P.,
1978 Cr.L.J. 651 - Aleksander Kurganov vs.
State & Another, 2021 Supreme (Bomb) 658 -
Tajuddin @ Rotash vs. State of Haryana, 2021
Supreme (P & H) 1626 (online) / 2022 Cr.L.J.,
Page 1135 - Vinay Kumar @ Vicky vs. State of
Haryana, 2021 Cri CC 200 - Gurjant Singh vs.
State of Haryana, CRR 1868-2022(O&M) -
Faiyaz Miyan vs. State of Bihar, Criminal Misc.
No. 16906 of 2025, decided on 02.07.2025 -
Aman Dixit Vs. State of U.P., Criminal Misc. Bail
Application No. 11247 of 2021, decided on
12.11.2021 - Narcotics Control Bureau vs. Kashif
in Criminal Appeal No.5544 of 2024 arising out
of Special Leave Petition (Crl.) No.12120 of
2024 - Pooran Mal vs. Director of Inspection
(Investigation) New Delhi and others, (1974) 1
SCC 345 - State of Punjab vs. Baldev Singh
(1999) 6 SCC 172 - State of H.P. vs. Pirthi
Chand and Another (1996) 2 SCC 37 - State of
Punjab vs. Makhan Chand (2004) 3 SCC 453 - K.
Veeraswami vs. Union of India and Others :
(1991) 3 SCC 655 - Yusuf @ Asif vs. State 2023
SCC Online SC 1328 and Mohammed Khalid and
Another vs. State of Telangana (2024) 5 SCC
393 - CBI vs. Kapil Wadhawan: 2024 SCC
OnLine SC 66.

LIST OF ACTS
Narcotic Drugs and Psychotropic Substances
Act, 1985 (NDPS Act) - Code of Criminal
Procedure, 1973 (Cr.P.C.).
LIST OF KEYWORDS
Bail application - NDPS Act - Conscious
possession - Commercial quantity - FSL report -
Charge-sheet - Daily wager cleaner - Ganja
recovery.

CASE ARISING FROM
Case Crime No. 660 of 2023 (S.T. No. 33 of
2024) - Police Station: Robertsganj, District
Sonbhadra, Uttar Pradesh - Offence: Recovery
of 151.600 kgs of ganja from DCM Truck No.
HR45 B3831.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Amber Khanna,
Raj Kumar Khanna, Ram Kripal, Sandal Khanna.

Counsel for Respondent(s): G.A.

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

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

2. This is a second bail application. By
means of this application, applicantRandhir, who is involved in Case Crime
No. 660 of 2023(S.T. No. 33 of 2024),
under Section 8/20 of N.D.P.S. Act, Police
9 All. Randhir Vs. State of U.P.
1201
Station - Robertsganj, District - Sonbhadra,
seeks enlargement on bail during the
pendency of trial.

3. The first bail application of the
applicant
being
Criminal
Misc.
Bail
Application No. 3333 of 2024 was rejected
on 12.08.2024 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. 660 of 2023, under Section
8/20 of Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred
to as "NDPS Act"), Police Station-
Robertsganj, District- Sonbhadra, during
the pendency of trial.

3. The prosecution story as
unfolded from the First Information Report
(FIR) is that Contraband (Ganja) has been
recovered from DCM Truck No.HR45
B3831 in eight packets, total weight
151.600
kgs.
When
the
police
had
intercepted the vehicle at Robertsganj,
Sonbhadra, the driver and the cleaner were
apprehended on spot who confessed that
they were brining the aforesaid contraband
from Orrisa and were going to Haryana.

4. Learned counsel for the
applicant submitted that the applicant is
Cleaner of the said truck and has no
concerned with the aforesaid Contraband,
which is alleged to have been recovered
from the truck. It is further contended that
the applicant does not have any criminal
history. It is next contended that necessary
compliance under Section 50 of the Act was
not done and the sample were not prepared
and sent for chemical examination. It was
lastly contended that the applicant is
languishing in jail since 12.11.2023.
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 driver of the truck and were
transporting Contraband (Ganja). The
recovered quantity is huge to the tune of
151.600 kgs., which is well above the
commercial quantity. It is further submitted
that the recovery was made from the truck
and it amounts to conscious possession and
the 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 (ganja), copy of which
has been appended as Annexure -1 to the
counter affidavit. It is further submitted
that after investigation was concluded on
31.12.2023, charge sheet has also been
filed in the matter.

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

7.
This
is
a
case
where
contraband (Ganja) amounting to 151.600
kgs.
has
been
recovered
from
the
possession of the applicant and other coaccused.

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)-
1202 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
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."
9 All. Randhir Vs. State of U.P.
1203

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
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
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.
9 All. Randhir Vs. State of U.P.
1205

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.
....

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
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
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.
9 All. Randhir Vs. State of U.P.
1207

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 report of FSL has already
been filed on 02.12.2023 wherein sample
recovered was found to be Contraband
(Ganja).

20. In the light of the analysis of
the case, as mentioned above, and
considering that recovery of huge quantity
of contraband (Ganja) is 151.600 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.

21. 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.

22. In the result, the bail
application stands rejected."

4. Counsel for the applicant submitted
that
the
applicant
is
in
jail
since
12.11.2023. He further submitted that the
mandatory provisions of Section 50 of
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (hereinafter referred
as "NDPS Act") were not complied with
and the ground of arrest at the time of arrest
was not disclosed to the applicant.
According to him, applicant is cleaner of
DCM truck from which the contraband is
alleged to have been recovered. He was
working
as
a
daily
wager
by
the
owner/driver of the vehicle. It is also
contended that he is working on a daily
wage of Rs.500/- per day and has a wife,
three daughters and one son and there is no
one to look after the children. It is also
contended that charge-sheet has been
submitted
and
trial
court
had
took
cognizance in the matter and charges were
framed on 12.01.2024. As PW-1 has not
appeared, Non Bailable Warrants have
been issued against him. It is also stated
that the alleged contraband does not belong
to the applicant and he was not in
conscious possession of the same.

5. Learned counsel has also submitted
that
police
had
not
prepared
the
representative
sample
of
each
bag
recovered
from
DCM
truck.
The
Investigating Officer had submitted the
charge-sheet on 31.12.2023 without filing
FSL report along with said charge-sheet.
He also invited the attention of the Court to
the question and answer issued by trial
court for demonstrating the fact that FSL
report is not part of the charge-sheet.
Reliance has been placed upon the decision
of Apex Court rendered in case of Central
Bureau of Investigation vs. R.S. Pai &
Another, 2002 SCC (5) 82; Divyas
Bardeva vs. Narcotics Control Bureau,
Special Leave to Appeal (Crl) Nos.
11628/2022; Mohd. Arbaz, etc vs. State
of NCT of Delhi, S.L.P. (Crl.) Nos. 81648166/20212002 SCC(5) 82; Pankaj Gupta
vs. Narcotics Control Bureau, S.L.P.
(Crl.) No. 12200/2023; Bablu Singh vs.
State of M.P., S.L.P.(Crl) No. 631 of
2024; Babu Singh & Others vs. State of
U.P., 1978 Cr.L.J. 651, judgment of
Bombay High Court rendered in case of
Aleksander
Kurganov
vs.
State
&
Another, 2021 Supreme (Bomb) 658;
judgment of Punjab and Haryana High
Court rendered in case of Tajuddin @
Rotash vs. State of Haryana, 2021
Supreme (P & H)1626 (online)/ 2022
Cr.L.J., Page 1135; Vinay Kumar @
Vicky vs. State of Haryana, 2021 CriCC
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
200; Gurjant Singh vs. State of Haryana,
CRR 1868-2022(O&M); judgment of
Patna High Court rendered in case of
Faiyaz Miyan vs. State of Bihar,
Criminal Misc. No. 16906 of 2025,
decided on 02.07.2025 and judgment of
this Court rendered in case of Aman
Dixit Vs. State of U.P., Criminal Misc.
Bail Application No. 11247 of 2021,
decided on 12.11.2021.

6. Learned A.G.A. has opposed the
bail application and submitted that huge
quantity of contraband (ganja) has been
recovered and the applicant was sitting in
the DCM truck when the alleged recovery
was made. He further submitted that
sample from each eight bags of ganja
recovered was sent for chemical analysis
which
amounted
to
80
grams
on
18.11.2023. The report of FSL was
submitted on 02.12.2023 which has been
annexed as annexure-1 to counter affidavit.
According
to
him,
charge-sheet
was
submitted on 31.12.2023 and cognizance
order was passed on 12.01.2024. According
to him, FSL report is part of the case diary
dated 19.06.2024 as the investigation is still
going on in respect of the owner of the
vehicle which is evident from CD-8
prepared on 31.12.2023. He then contended
that FSL report is only a corroborative
evidence which shall be considered at the
time of trial. The argument raised from the
applicant side that it is not part of case
diary
is
not
acceptable.
He
further
contended that Section 293 of Code of
Criminal Procedure, 1973 provides for
report of certain government scientific
expert, which includes examination or
analysis and report in course of any
proceeding under the Code, and may be
used as evidence in any inquiry, trial or
other proceedings under the Code. He also
contended that provisions of Section 167(2)
Cr.P.C. in case of commercial quantity
having been recovered of any contraband
would be read as 180 days and not as 90
days. This has been provided in Section
36A(4) of the NDPS Act, 1985.

7. I have heard respective counsel for
the parties and perused the material on
record.

8. Before adverting to decide the
second bail application, a cursory glance of
recent 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,
decided on 20.12.2024, is necessary for
better understanding of the case.

9. 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.
Apart from the plain language used in the
said section, its Heading also makes it
9 All. Randhir Vs. State of U.P.
1209
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
seized contraband drugs and substances,
considering
the
hazardous
nature,
vulnerability to theft, constraint of proper
storage space etc. There cannot be any two
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

10. 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.