Allahabad High Court
Abhishek Kumar vs State Of U.P. on 28 October, 2025
Author: Santosh Rai
Bench: Santosh Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:188862
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 22677 of 2025
Abhishek Kumar
.....Applicant(s)
Versus
State of U.P.
.....Opposite Party(s)
Counsel for Applicant(s)
:
Anoop Singh
Counsel for Opposite Party(s)
:
G.A.
Court No. - 70
HON'BLE SANTOSH RAI, J.
1. Heard learned counsel for the applicant; learned AGA for the State and perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicant Abhishek Kumar with a prayer to release him on bail in Case Crime No. 29 of 2024, under Sections 8/20 N.D.P.S. Act, and section 419, 420, 467, 468, 465 I.P.C., Police Station Naini, District Prayagraj during pendency of trial.
3. Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case due to ulterior motive. He further submits that as per allegation contained in the F.I.R., 32 kg of contraband ganja was said to be recovered from the possession of applicant and other co-accused persons and accused applicant was said to be sitting in the XUV car from which aforesaid recovery was said to be made. He further submits that co-accused Bheemsen, who was also named in the F.I.R. and having same role has been enlarged on bail by the coordinate Bench of this Court vide order dated 07.04.2025 passed in Criminal Misc. Bail Application No. 8602 of 2024 and therefore, applicant is also entitled for bail.
4. Learned counsel for the applicant further argued that the prosecution has not complied with mandatory provision of 42(2) and 52A of the N.D.P.S. Act and Notification of Central Government dated 23.012.2022 regarding the Rules meant for Narcotic Drugs and Psychotropic Substances (seizer, storage, sampling and disposal) Rules, 2022. Learned counsel for the applicant has drawn attention of the Court towards provision of Rule 10 of the Aforesaid Rule. He further submitted that the applicant has not committed any offence. Accused-applicant is innocent and has been falsely implicated in this case without any cogent and reliable material evidence. He is neither owner of the XUV car, nor carrying ganja by the aforesaid car. He further submits that 8 persons are named in the F.I.R., but no separate and specific role has been assigned to the accused applicant. The applicant is languishing in jail since 14.01.2024.
5. Learned AGA vehemently opposed the submission of the accused applicant by contending that accused applicant was arrested on the spot from the vehicle alongwith contraband ganja. He relied upon a judgment of Hon'ble Supreme Court in the case of Union of India (NCB) Etc. vs. Khalil Uddin etc., 2022 LiveLaw (SC) 878, Narcotics Control Bureau vs. Kashif, 2024 0 Supreme Court (SC)1264 and Union of India vs. Rattanimallik @ Habul, 2009 LawSuit(SC)52 and further submitted that the bail application of the accused should be rejected on the basis of his active participation in committing the offences of N.D.P.S Act and considering huge quantity of recovery of ganja.
6. Rule 9 and 10 of Ministry of Finance (Department of Revenue) Notification New Delhi, the 23rd December, 2022 reads as under :-
"9. Samples to be drawn in the presence of Magistrate - After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub-section.
10. Drawing the samples - (1) One sample, in duplicate, shall be drawn from each package and container seized.
(2)When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than fourty packages or containers.
(3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."
7. Regarding bail application under N.D.P.S. Act, it is pertinent to mention Section 37 of N.D.P.S. Act, which 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."
8. Thus, the conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail, "not guilty" means that it can only be a prima facie determination.
9. In State of Punjab Vs. Baldev Singh 1999 (6) SCC 172 the Hon'ble Supreme Court held that the compliance of Section 50 N.D.P.S. Act is mandatory.
".....That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search...?"
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused."
10. In the decisions in Pankaj Bansal v. Union of India 2024 (7) SCC 576, Prabir Purkayastha v. State (NCT of Delhi) 2024(8) SCC 254 and Vihaan Kumar v. State of Haryana AIR 2025 SC 1388, it has been held that the requirement of informing a person of grounds for arrest is a mandatory requirement of Article 22(1) and also that the information of the grounds for arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts confuting the grounds imparted and communicate to the arrested person effectively in the language which he understands.
11. Considering all above facts and circumstances, the nature of accusations, twin principles as laid down in Section 37 of N.D.P.S. Act in the light of role and involvement of accused coupled with no recovery, period of detention in jail, severity of the punishment, fact of no recovery from the possession of accused, nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but without commenting on merit of case, a case for bail is made out.
12. Accordingly, the bail application is allowed.
13. Let the accused-applicant, Abhishek Kumar, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable heavy sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions:
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A I.P.C./269 B.N.S.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C./84 B.N.S.S. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A I.P.C./209. B.N.S.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
14. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
15. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
(Santosh Rai,J.)
October 28, 2025
Bhanu
