Allahabad High Court
Anwar Khan vs State Of U.P. And Another on 22 August, 2025
Author: Santosh Rai
Bench: Santosh Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:145360
Court No. - 87
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29859 of 2024
Applicant :- Anwar Khan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- A.Z.Khan,Amit Kumar Yadav
Counsel for Opposite Party :- G.A.,Krishna Agarawal
Hon'ble Santosh Rai,J.
1. Heard learned counsel for the applicant, Sri Krishna Agarawal, learned counsel for respondent no.2 and learned AGA for the State-respondents and perused the record.
2. This second bail application under Section 439 Cr.P.C. has been moved on behalf of accused-applicant Anwar Khan seeking enlargement on bail in Sessions Trial No.655 of 2019, arising out of Case No.2 of 2016, under Sections 8/20/43 N.D.P.S. Act, 1985, Police Station D.R.I., District Gorakhpur. First bail application of the applicant was rejected by Coordinate Bench of this Court vide order dated 2.8.2023.
3. Learned counsel for the applicant argued that the accused-applicant is innocent he has been falsely implicated in this case. It is submitted that the provisions of Sections 42 and 50 of N.D.P.S. Act have not been duly complied with by the competent authority during the course of investigation. Learned counsel for the applicant admits that the accused applicant has previously been convicted and sentenced.
4. Learned counsel for respondent no.2 vehemently opposed the submission of learned counsel for the applicant and submitted that huge quantity of ganja i.e. 262.25 Kg was recovered from the possession of the accused applicant accused. The commercial quantity of ganja is 20 Kg. Thus the quantum of recovery of ganja is more than 13 times. It is further submitted that the accused applicant has previously been convicted and sentenced to 10 years of imprisonment under the N.D.P.S. Act in Case Crime No.58 of 2016 which fact has also been taken note of while rejecting the first bail application of the accused applicant by this Court. Provisions of Section 50 of N.D.P.S. Act has been duly complied with. The recovery from the possession of the accused-applicant is more than the commercial quantity.
5. Regarding bail application under N.D.P.S. Act it is pertinent to mention Section 37 of N.D.P.S. Act. Section 37 of the N.D.P.S. Act reads 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."
6. 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.
7. The Hon'ble Apex Court in the case of Union of India Vs. Rattan Mallik @ Habul, (2009) 1 SCC (Cri) 831 has 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."
8. In State (NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha (2021) 5 SCC 724 the Hon'ble Supreme 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."
9. 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 hereasunder:-
"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 drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.
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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.
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 inSupt. & 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.
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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.
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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."
10. In the light of the analysis of the case, as mentioned above, and considering that recovery of huge quantity of contraband coupled with the fact that the same was recovered from the vehicle of the applicant as well as the previous convictional history of the accused applicant under the N.D.P.S. Act, twin principles as laid down under Section 37 N.D.P.S. Act, this Court is of the considered view that no new, reliable and reasonable ground is available to grant the second bail application of the applicant.
11. The bail application stands rejected.
Order Date :- 22.8.2025
RA
