HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL MISC. BAIL APPLICATION No. - 2902 of 2026 Court No. - 68 HON'BLE ASHUTOSH SRIVASTAVA, J. Heard Shri D. K. Srivastava, learned Senior Counsel assisted by Ms. Disha Srivastava, learned counsel for the applicant, Shri Vijendra Kumar, learned AGA for the State and perused the entire material available on record. This is the second bail application filed by the applicant. The first bail application filed by the present applicant has been rejected by this Court by means of a detailed order dated 3.3.2025 passed in Criminal Misc. Bail Application No. 39678 of 2024, a copy of which has been brought on record as Annexure-1 to the bail application. The applicant Deepak, has filed this second bail application with a prayer to enlarge him on bail in Case Crime No. 890 of 2024, under Sections 21/22 of the Bharatiya Nyaya Sanhita, 2023, Police Station Highway, District Mathura, during the pendency of the trial before the Court below. In support of this second bail application, learned Senior counsel for the applicant has reiterated the entire submissions made in the first bail application, which are not necessary to mention herein again by this Court. Apart from the above, learned Senior Counsel for the applicant submits that charge sheet in this case was filed on 18.11.2024 and charges against the applicant were framed on 1.5.2025. Learned Senior Counsel submits that in the Trial Court only dates are being fixed for prosecution evidence. The case of the applicant is proceeding at a snail's pace. There are 08 witnesses as per Versus Counsel for Applicant(s) : Disha Srivastava, Hari Krishna Singh, Sr. Advocate Counsel for Opposite Party(s) : G.A. Deepak .....Applicant(s) State of U.P. .....Opposite Party(s) the charge sheet and all are the Police personnel. Till date none of the prosecution witnesses have been examined so far. The applicant is languishing in jail since 12.9.2024. The applicant has criminal history of four other cases, which have been duly explained. No other case is under the NDPS Act. Learned Senior Counsel further submits that applicant has been falsely implicated in this case because FSL report of some other case i.e. State versus Goverdhan @ Guddu has been annexed with the case of present applicant as no applicant in the name of Goverdhan @ Guddu has been arrayed as accused in the present case. The Parcha No. 7 of the case diary dated 18.11.2024 containing the extracts of the FSL report has been brought on record to substantiate the submission. Learned Senior Counsel further submits that on the recovery memo, the investigating officer has not obtained the signature of the applicant and only the signature of co-accused Chand Babu exists which is a gross illegality entitling the applicant to bail. Shri Vijendra Kumar, learned AGA has vehemently opposed the prayer for bail. Learned AGA from the case diary points out that perusal of letter No. 3412- KM-455-24 dated 4.10.2024 of Joint Director, FSL, Agra addressed to Circle Officer, Refinery, Mathura, it is crystal clear that FSL report in case State versus Deepak and others, Case Crime No. 890 of 2024, under Section 21/22 of NDPS Act, Police Station Highway, Mathura has been received, which certified that recovered contraband was Alprazolam. Learned AGA submits that recovery of 500 grams of Alprazolam was made from the possession of applicant and after obtaining consent as required under Section 50 of the NDPS Act, the search was carried out. The mandatory provisions of Section 105 BNSS has been complied with by the investigating officer. It is accordingly submitted that the bail plea deserves outright rejection. I have considered the rival submissions advanced by learned counsel for the parties and perused the material available on record. BAIL No. 2902 of 2026 2 It is evident that during search 500 grams of Alprazolam is stated to be recovered from the conscious possession of the applicant, which is more than commercial quantity. The perusal of letter No. 3412-KM-455-24 dated 4.10.2024 of Joint Director, FSL, Agra, it is clear that FSL report in this very case crime number has been received and the recovered contraband was found to be Alprazolam. The contention of learned Senior Counsel for the applicant that the FSL report pertains to some other case, is rejected and it appears that human error has occurred while recording the Parcha No. 7. As regards the other contention of learned Senior Counsel for the applicant that the recovery memo does not contain the signature of the applicant, in the opinion of the Court, the same is not a mandatory requirement and can at best be treated to be an irregularity having no effect on the alleged recovery and offfence committed, particularly, when compliance of Section 105 BNSS has been made and the applicant has been apprehended from the spot. This court has considered the recent case of Union of India Vs Md. Nawaz Khan, reported in, AIR 2021 SC 447, which is a case where contraband was concealed in a bag and it was held by Supreme Court that factum of absence of possession of contraband by the accused in itself cannot be sole ground for grant of bail. In paragraph nos. 20, 24 & 25, it has been said as under:- "20. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed. "24. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India vs. Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no BAIL No. 2902 of 2026 3 contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37 (1)(b) and there was non- application of mind by the High Court. 25. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act." It is further asserted by the Hon'ble Supreme Court vide para 25, referred to above, that finding of the absence of possession of the contraband on the person of the accused does not absolve him of the level of scrutiny required under Section 37 (1)(b)(ii) of the NDPS Act. Learned counsel for the accused has not been able to point out anything to this Court so as to come to conclusion that the accused is not guilty of the offence. The fact that accused was not in physical possession of contraband would not be enough to conclude that accused is not guilty. The contention that recovery was not from conscious possession of the accused is noted to be rejected in view of recent decision of Supreme Court in Md. Nawaz Khan's case (supra). In the case of State vs. Syed Amir Hasnain, (2002) 10 SCC 88, the Hon'ble Apex Court has held in view of the two judgments of this Court in Union of India Vs Ram Samujh, (1999) 9 SCC 382 and Union of India Vs Aharwa Deen, (2000) 9 SCC 382, even the High Court would be bound by the provisions of Section 37 of the NDPS Act and would not be entitled to release the accused under the provisions of the NDPS Act unless the provisions of Section 37 of the Act are satisfied. In Narcotics Control Bureau v. Mohit Aggarwal [(2022) 18 SCC 374], the three Judge Bench of the Hon'ble Supreme Court held that "length of the period of custody or that the charge-sheet had been filed or even that the trial has not commenced by themselves are not BAIL No. 2902 of 2026 4 considerations that can be treated as persuasive grounds to grant bail under Section 37 of the NDPS Act." The Apex Court recently in the case of Bharat Ambale versus State of Chattisgarh, reported in [2025 INSC 78] while dealing with the plea that conviction stood vitiated on account of non compliance of Section 52A of the NDPS Act in Para 50 of its judgment has held as under:- "50.We summarize our final conclusion as under: - (I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act. (II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure. (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of BAIL No. 2902 of 2026 5 the investigation, and as such what is required is substantial compliance of the procedure laid therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. (VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the BAIL No. 2902 of 2026 6 prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt." In the case at hand, more than commercial quantity of contraband was recovered during interception and applicant along with co-accused were arrested from the spot. There is every likelihood that the applicant shall indulge in similar crime, if enlarged on bail. In the ultimate conclusion, considering the facts and circumstances of the case, gravity of the offence, severity of punishment, in my opinion, no case for bail is made out. Accordingly, the 2nd bail application is hereby rejected. It is clarified that the observations made regarding the 2nd bail application is limited to the decision of the bail application and any observations made herein shall not effect the trial of the case. February 27, 2026 Ravi Prakash BAIL No. 2902 of 2026 7 (Ashutosh Srivastava,J.) Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad