Anticipatory bail under new provisions can be granted despite prior restrictions under NDPS Act if evidence is inconclusive.

JUDGMENT :

Manish Mathur, J.

1. Heard Mr. Prabhat Kumar Mishra learned counsel for applicant and Dr. V.K. Singh learned Government Advocate assisted by Mr. Nikhil Singh learned Additional Government Advocate on behalf of State. For better appreciation of controversy this Court has also heard Mr. S.K.Singh, Mr. Atul Verma, Mr. Gaurav Mehrotra, Mr. Nadeem Murtza and Mr. Dilip Kumar Pandey, Advocates as learned Amicus Curiae.

2. 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.

3. 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.

4. 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. It is submitted that 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 aforesaid 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. It is submitted that although Cr.P.C. has subsequently been repealed by the Bhartiya Nagrik Suraksha Sanhita 2023, the provisions incorporated by means of amendment in Section 438 Cr.P.C. would continue in the same terms in view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. Learned counsel has also adverted to provisions of Sections 6, 6-A, 8 and 24 of the General Clauses Act 1897 to substantiate his submission that in case where a Central Act has been amended by State legislature by means of an enactment and has subsequently been granted assent by the President of India, the State enactment would continue to govern the field in terms of Article 254(2) of the Constitution of India and in such a situation the Repeal of Central Act would be immaterial. Learned counsel has specifically emphasized upon Section 6-A of General Clauses Act to substantiate his pleading that since different intention appears, the Repeal of Central Act would not affect the continuance of amendment of Central Act which was made by the state enactment in the year 2019. Learned counsel has also placed reliance on Section 2(p) BNSS 2023 to submit that the definition of 'notification' under Section 2(p) BNSS would be a notification published in the official gazette which is in turn defined in Section 3(39) of the General Clauses Act. It is therefore submitted that the term of 'notification' as appearing in Section 531(2)(b) BNSS would construe a saving clause of the amendment made in the year 2019 by the state amendment in Section 438 Cr.P.C.

5. Learned counsel has placed reliance on following case laws:-

State of Punjab versus Harnek Singh , (2002) 3 SCC 481; Vinay Kumar Pandey versus State of U.P. and others , decided by Division Bench of this Court in Criminal Misc. Writ Petition No. 13827 of 2024; Jitendra Pratap Singh versus State of U.P. a Division Bench of this Court in Criminal Misc. Anticipatory Bail Application No. 144 of 2024.

6. Learned counsel appearing for applicant and learned Amicus Curiae have refuted submissions advanced by learned counsel for State with submission that it is in fact proviso to Article 254(2) of the Constitution of India which would govern the field and not provisions of the General Clauses Act which have been relied upon by learned Government Advocate. It is submitted that in the present case, it is Section 6 of the General Clauses Act which would be applicable.

7. It has b