The Allahabad High Court has held that anticipatory bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act is now maintainable in Uttar Pradesh following the enforcement of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. This development effectively overrides the bar imposed by the Criminal Procedure Code (UP Amendment) Act, 2018.
The decision came in the case titled Sudhir @ Sudhir Kumar Chaurasia vs. State of U.P., where the applicant sought anticipatory bail after NDPS charges were added to an FIR already involving IPC sections.
“BNSS, being a central law, prevails over state amendments. Hence, the earlier prohibition on anticipatory bail under Section 438(6) CrPC, introduced by the 2018 UP Amendment Act, no longer holds ground,” the Court observed.
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Justice Manish Mathur, presiding over the matter, clarified that the 2018 UP Amendment Act was a legislative enactment and not a mere notification. Therefore, it is not protected under Section 531(2)(b) of BNSS, which applies to administrative notifications and orders.
The Court further analyzed the provisions of the General Clauses Act and emphasized:
“A different intention to continue the repealed provisions must be explicitly mentioned in the new enactment. Since BNSS does not show any such intention, the prior restrictions under the UP amendment stand repealed.”
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The court compared Section 438 CrPC (as amended by UP Act 4 of 2019) with the newly introduced Section 482 of BNSS and found major differences. Section 482 does not retain the prohibitory clauses from the earlier provision, suggesting Parliament deliberately removed them.
In light of these findings, the Court declared:
“It is evident that Section 482 BNSS, as enacted by Parliament, overrides the UP-specific restrictions introduced earlier. Therefore, anticipatory bail is maintainable even in NDPS cases under BNSS.”
On the case merits, the Court noted that Section 22(c) NDPS was added later in the FIR and the quantity of Codeine allegedly recovered was yet to be confirmed via FSL report. This, the Court said, warranted anticipatory bail subject to conditions.
The High Court granted relief to the applicant, emphasizing compliance with conditions like cooperating with investigation and not leaving India without permission.
Quote Highlights:
“By no stretch of imagination can it be said that the laws promulgated under Article 246 of the Constitution would come within purview of a notification and not an enactment.”
“The re-enacted Section 482 BNSS makes a conscious departure from the prohibitory clauses of Section 438(6) CrPC.”
“In case of repugnancy between State and Central law, the law enacted by Parliament shall prevail.”
Appearances
Advocate Prabhat Kumar Mishra for the applicant
Government Advocate Dr VK Singh, assisted by Additional Government Advocate Nikhil Singh, learned on behalf of State.
Advocate SK Singh, Atul Verma, Gaurav Mehrotra, Nadeem Murtza and Dilip Kumar Pandey were also heard as Amicus Curiae
Case title - Sudhir @ Sudhir Kumar Chaurasia vs. State Of U.P. Thru. The Prin. Secy. Ministry Of Home And 3 Others
