Anticipatory Bail Now Allowed in NDPS Cases Under BNSS: Allahabad High Court Strikes Down UP Amendment Bar

The Allahabad High Court while striking down CrPC (UP Amendment) Act 2018 allowed the anticipatory bail now allowed in Narcotic Drugs and Psychotropic Substances (NDPS) cases under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The bench of Justice Manish Mathur has observed that from perusal of differences in provisions of anticipatory bail incorporated vide Act No. 4 of 2019 and Section 482 BNSS 2023, it is evident that Parliament made a conscious decision to do away with the prohibitions indicated in Section 438(6) Cr.P.C. Particularly since it would be deemed that Parliament was aware of provisions incorporated vide Act No.4 of 2019 by virtue of deeming fiction and therefore the re-enacted provisions can be said to have been deliberately obliterated by Parliament while enacting Section 482 BNSS 2023.

First Anticipatory bail application has been filed with regard to Section 22(c) of the NDPS Act 1985 registered in Police Station Kotwali, District Barabanki. Earlier with regard to same case crime number, anticipatory bail had been granted to the applicant under Sections 420, 467, 468 and 471 IPC in anticipatory bail application No. 1713 of 2024. The present anticipatory bail application has been filed with regard to added Section 22(c) of the NDPS Act.

At the very outset, learned counsel for State has raised a preliminary objection regarding maintainability of anticipatory bail application in view of the fact that it pertains to NDPS Act and therefore is not maintainable in terms of Section 438(6) Cr.P.C. Earlier the provisions of Section 438 Cr.P.C. pertaining to anticipatory bail were omitted for the State of U.P. by means of U.P. Act No.16 of 1976 and were re-incorporated by means of U.P. Act No. 4 of 2019. It is submitted that the provisions of anticipatory bail were subject to embargo under Section 438(6) which clearly indicated that provisions of anticipatory bail would not be applicable in case of NDPS Act. Although Cr.P.C. has subsequently been repealed by the Bhartiya Nagrik Suraksha Sanhita 2023, the provisions incorporated by means of amendment in Section 438 Cr.P.C. would continue in the same terms in view of Section 531(2)(b) of BNSS.

Article 254(2) is also indicative of the fact that even in case a State Act made subsequent to the Central Act receives assent from the President and in terms thereof prevails in that State, the Parliament would be within its legislative competence to enact a subsequent law adding to, amending, verying or repealing the law so made by State Legislature.

The court held that by virtue of Section 6 of the General Clauses Act, a different intention to continue the repealed provisions is required to be specifically stated in the subsequent enactment, failing which, the provisions of proviso to Article 254(2) would be applicable whereby in case of any repugnance or difference with subsequent enactment, the law made by Parliament would prevail.

The court released the applicant shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the various conditions.

Firstly, the applicant shall make himself available for interrogation by a police officer as and when required.

Secondly, 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.

Thirdly, the applicant shall not leave India without the previous permission of the court.
Fourthly, in case a charge-sheet is submitted the applicant shall not tamper with the evidence during the trial.

Fifthly, the applicant shall not pressurize/ intimidate the prosecution witness.

Sixthly, the applicant shall appear before the trial court on each date fixed unless personal presence is exempted.

Lastly, in case of breach of any of the above conditions, benefit of the order would not be available to the applicant.

Case Details

Case Title: Sudhir @ Sudhir Kumar Chaurasia Versus State Of U.P.

Case No.: CR.P.C. No. - 447 of 2025

Date: 30.5.2025

Counsel For Petitioner: Pradeep Kumar, Adarsh Tripathi, Prabhat Kumar Mishra

Counsel For Respondent: G.A.

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