1. Bail application under Section 27A NDPS Act for recovery of commercial quantity ganja from co-accused. (Para 2 , 3 )
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2026 Supreme(Online)(All) 552
ALLAHABAD HIGH COURT
Santhosh Rai, J
Ajay Kumar Pandey – Appellant
Versus
State of U.P. – Respondent
CRIMINAL MISC. BAIL APPLICATION No. - 889 of 2026
Important Points
Bail may be granted under Section 37 of the NDPS Act if the accused was not in conscious possession of the contraband and was implicated solely via co-accused confessional statements, provided there are reasonable grounds to believe they are not guilty.
Subject
Criminal Law - Bail
Act Referred
N.D.P.S. Act: S.27A, S.42, S.50, S.52A, S.57, S.37
Constitution of India: Art.22(1)
Code of Criminal Procedure, 1973
Constitution of India: Art.22(1)
Code of Criminal Procedure, 1973
Headnote
(A) N.D.P.S. Act - Bail - Conscious Possession - Where the contraband is recovered from co-accused and the applicant is implicated solely on the basis of a confessional statement without any recovery from his person, the requirement of 'conscious possession' is not prima facie established. (Para 11)
(B) N.D.P.S. Act - Section 37 - Twin Conditions - In determining whether there are reasonable grounds to believe the accused is not guilty, the court may consider the absence of independent witnesses during recovery and the fact that the charge-sheet has already been filed, reducing the risk of witness tampering. (Para 11)
(C) Constitutional Law - Article 22(1) - Grounds for Arrest - The requirement of informing an arrested person of the grounds of arrest is mandatory and must be communicated effectively in a language the person understands. (Para 10)
Issues: Whether the applicant is entitled to bail despite the recovery of a commercial quantity of ganja from co-accused persons and the restrictions under Section 37 of the N.D.P.S. Act.
(B) N.D.P.S. Act - Section 37 - Twin Conditions - In determining whether there are reasonable grounds to believe the accused is not guilty, the court may consider the absence of independent witnesses during recovery and the fact that the charge-sheet has already been filed, reducing the risk of witness tampering. (Para 11)
(C) Constitutional Law - Article 22(1) - Grounds for Arrest - The requirement of informing an arrested person of the grounds of arrest is mandatory and must be communicated effectively in a language the person understands. (Para 10)
Issues: Whether the applicant is entitled to bail despite the recovery of a commercial quantity of ganja from co-accused persons and the restrictions under Section 37 of the N.D.P.S. Act.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates:
For the Appellants/Petitioners: Gaurang Dwivedi, Vimlendu Tripathi
For the Respondents: G.A.
For the Appellants/Petitioners: Gaurang Dwivedi, Vimlendu Tripathi
For the Respondents: G.A.
Table of Contents
2. Applicant claims false implication based on co-accused's confessional statement; State opposes citing commercial quantity recovery. (Para 4 , 5 )
3. No conscious possession of contraband shown against applicant; name surfaced only on co-accused's confessional statement. (Para 11 )
4. Under Section 37 NDPS Act, court must find reasonable grounds that accused is not guilty and not likely to re-offend. (Para 7 , 8 )
5. Bail granted with conditions: not to tamper evidence, attend trial, and file undertaking against adjournments. (Para 11 , 12 , 13 )
6. What are the mandatory conditions for granting bail under Section 37 of the NDPS Act?
The court must be satisfied there are reasonable grounds for believing the accused is not guilty and not likely to commit any offence while on bail. (Para 7 , 8 )
7. Is compliance with Section 50 of the NDPS Act mandatory for searches?
Yes, compliance is mandatory; failure to inform the person of their right to be searched before a gazetted officer or magistrate causes prejudice. (Para 9 )
8. What are the mandatory requirements for informing grounds of arrest under Article 22(1) of the Constitution?
The grounds must be communicated effectively in a language the arrested person understands, imparting sufficient knowledge of basic facts. (Para 10 )
9. What are the procedural requirements for drawing samples of seized narcotics under the NDPS Act?
Samples must be drawn in the presence of a magistrate after application under Section 52A, with one duplicate sample per package or bunched lot. (Para 6 )
1. Heard learned counsel for the applicant, Sri Purushottam Maurya, learned counsel for the State-respondent and perused the record.
2. This bail application has been moved on behalf of accused-applicant Ajay Kumar Pandey @ Annu Maharaj @ Pandey Jee seeking enlargement on bail in Case Crime No.127 of 2025, under Sections 27A N.D.P.S. Act , Police Station Kadaura, District Jalaun.
3. Tersely, as per the allegation contained in the FIR two accused persons were spot arrested from whose possession 56 Kg 268 gram of contraband ganja, which was kept in Toyota Etios bearing registration no.CG10EL5400, was recovered and on their confessional statement name of applicant was surfaced.
4. Learned counsel for the applicant submits that the accused-applicant has not committed any offence as alleged in the FIR and has been falsely implicated in this case. Applicant is languishing in jail since 16.12.2025. It is submitted that as per the FIR 56 Kg 268 gram of contraband ganja, which was kept in Toyota Etios bearing registration no.CG10EL5400, was said to be recovered from the joint possession of co-accused persons, Divyanshu Vyas and Shiva Tiwari @ Parth Tiwari and name of applicant was surfaced on the basis of confessional statement of co-accused persons. It is further submitted neither any conscious possession of contraband ganja was shown from the possession of applicant nor any mandatory provisions of Sections 42 , 50, 52A, 57 of the N.D.P.S. Act has been complied with by the competent authority in this case. It is argued that no independent and reliable witness was present at the time of preparation of recovery memo. It is further argued that applicant has no criminal antecedents to his credit. It is lastly submitted that since charge-sheet has already been submitted, therefore, there is no reasonable possibility of intimidating or pressurizing the prosecution witnesses. Submission is that the conclusion of trial will take sufficiently long and there is no likelihood of his fleeing from course of justice or tampering with evidence in case of release on bail. Hence, bail has been prayed for.
5. Learned AGA has vehemently opposed the submission of the accused applicant and submits that 56 Kg 268 gram of ganja, which is above the commercial quantity, was recovered from the conscious possession of the two co-accused persons, who assigned the role and involvement of applicant in their confessional statement. It is submitted that the provisions of Section 50 of the N.D.P.S. Act has been duly complied with by the authority in this case. It is argued that, in case the applicant is released on bail, he may again indulge in similar activities and misuse the liberty of bail.
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
