Kiran Raj

The High Court of Judicature at Allahabad, Lucknow Bench, Single Bench of Justice Manish Mathur held that an anticipatory bail application would be maintainable in cases involving offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court directed that the applicant be released on anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), subject to specified conditions. This direction was issued in light of the legal transformation brought by the BNSS, replacing the Code of Criminal Procedure, 1973 (Cr.P.C.), and was held to prevail over prior state amendments.

An anticipatory bail application was filed under Section 438 of the Cr.P.C., corresponding to Section 482 BNSS, seeking protection against arrest in connection with a case registered under Section 22(c) of the NDPS Act at Police Station Kotwali, District Barabanki.

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The applicant had previously been granted anticipatory bail in the same case for offences under Sections 420, 467, 468, and 471 of the Indian Penal Code (IPC) vide a separate application. However, the current application arose due to the subsequent invocation of Section 22(c) of the NDPS Act.

The State, through the learned Government Advocate, raised a preliminary objection concerning the maintainability of the application. It was contended that anticipatory bail was barred in NDPS matters under Section 438(6) Cr.P.C., as re-enacted by U.P. Act No. 4 of 2019. It was argued that although Cr.P.C. had been repealed by BNSS, the state-specific amendments under Section 438, as introduced by the Uttar Pradesh amendment, continued to remain valid by virtue of Section 531(2)(b) BNSS.

The State's counsel further relied on Sections 6, 6-A, 8, and 24 of the General Clauses Act, 1897 to support the contention that State amendments with Presidential assent survive the repeal of the Central Act, invoking Article 254(2) of the Constitution of India.

Opposing the preliminary objection, the applicant’s counsel, supported by several Amicus Curiae, contended that the bar imposed by the U.P. amendment to Section 438 Cr.P.C. ceased to apply after the repeal of Cr.P.C. by the BNSS. They argued that the newly enacted Section 482 BNSS did not contain a similar embargo against anticipatory bail in NDPS cases.

Further contentions included the distinction between an “enactment” and a “notification,” stating that U.P. Act No. 4 of 2019, being a legislative enactment, was not saved under Section 531(2)(b) BNSS, which only applied to administrative orders and notifications. They emphasized that Section 6 of the General Clauses Act alone was applicable in this context, as there was no specific intention expressed in BNSS to continue the earlier embargo.

Additionally, it was submitted that the F.I.R. alleged that the applicant was not apprehended at the spot, and the alleged narcotic substance was seized from a vehicle not owned by him but by his mother. The prosecution alleged that the vehicle was used for transporting codeine-based cough syrup without proper documentation. It was further submitted that no Forensic Science Laboratory (F.S.L.) report was available to confirm whether the recovered material exceeded the prescribed commercial quantity.

The State confirmed the absence of the F.S.L. report and acknowledged that no charge sheet had been filed under the NDPS provisions at the time of the hearing.

The Court recorded that “Section 531(2)(b) BNSS not indicating any terminology pertaining to legislative enactments... can not be termed to be a saving clause with regard to U.P. Act No.4 of 2019.”

It was observed that “there is a substantial difference in an enactment by State Legislature in terms of Article 246 of Constitution of India and a notification which would require to be effective from the date it is notified in the official gazette.”

The Court rejected the State’s reliance on the General Clauses Act, stating: “Section 6-A would be applicable only in those cases where earlier Central Act is kept intact and the subsequent Central Act or Regulation amends only the amendment made in the earlier Central Act.”

On the applicability of Section 6 of the General Clauses Act, it recorded: “The natural corollary of the said provision would be that for continued operation of any enactment or any provision of such enactment so repealed would require specific intention in the repealing enactment.”

Referring to the principle of repugnancy under Article 254(2), the Court stated: “There being a considerable difference in the provisions of anticipatory bail between Act No.4 of 2019 and Section 482 BNSS 2023, in the considered opinion of this court, it is the provisions of re-enacted Section 482 BNSS 2023, which shall prevail.”

Further, the Court noted: “Parliament made a conscious decision to do away with the prohibitions indicated in Section 438(6) Cr.P.C.”

The Court also held the interpretive principle that: “In case of any ambiguity in the construction of penal statute, favourable interpretation towards protecting the right of accused are required.”

The Court directed that anticipatory bail would be maintainable in NDPS matters under Section 482 BNSS. The Court specifically held: “In view thereof, it is held that an anticipatory bail application would be maintainable in cases where sections of the NDPS Act have been made applicable in an F.I.R.”

On the merits of the case, it found: “Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, prima facie subject to evidence led in trial, it appears that earlier charge sheet had been filed against the applicant on sections excluding Section 22(c) of the NDPS Act 1985 which has been imposed much subsequently.”

“The volume of Codeine seized is more than the prescribed limit in terms of rules framed under the Act of 1985, which at present may not be ascertainable due to lack of F.S.L report.”

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Accordingly, the Court allowed the application, holding: “In view of the above, it is provided that in the event of arrest, the applicant... shall be released on anticipatory bail... on his furnishing a personal bond with two sureties each in the like amount...”

The applicant was directed to comply with conditions, including appearing for interrogation when required, refraining from influencing witnesses, not leaving the country without permission, and appearing before the trial court on each date fixed.

The Court concluded: “The application stands allowed.”

Advocates Representing the Parties

For the Petitioner: Pradeep Kumar, Adarsh Tripathi, Prabhat Kumar Mishra, Advocates
For the Respondents: Dr. V.K. Singh, Government Advocate, assisted by Nikhil Singh, Additional Government Advocate

Case Title: Sudhir @ Sudhir Kumar Chaurasia vs. State of U.P. through Principal Secretary, Ministry of Home and Others
Neutral Citation: 2025:AHC-LKO:34988
Case Number: Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 447 of 2025
Bench: Justice Manish Mathur

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