HC grants anticipatory bail to accused in NDPS Act case
: The Lucknow bench of the Allahabad high court has allowed anticipatory bail to an accused in connection with an offence under the Narcotic Drugs and Psychotropic Substances( NDPS) Act, 1985.
With this, the high court rejected the preliminary objection raised by the state that such relief was barred under Section 438(6) of the CrPC as amended in Uttar Pradesh. The court held that with the repeal of the CrPC and the coming into force of BNSS 2023 (Bharatiya Nagarik Suraksha Sanhita), the amended section 482 of the BNSS has superseded the stated amendment.
Justice Manish Mathur passed this order recently on an application moved by Sudhir Kumar Chaurasia of Barabanki district seeking anticipatory bail under offence of the NDPS Act.
The applicant had earlier been granted anticipatory bail under Sections 420, 467, 468, and 471 of the Indian Penal Code. A second anticipatory bail application was filed after Section 22(c) of the NDPS Act, 1985 was added to the FIR. The prosecution objected, relying on section 438(6) of the CrPC as amended by U.P. Act No. 4 of 2019, which prohibits anticipatory bail in NDPS and certain other serious offences.
The state counsel contended that the U.P. amendment continued to apply in light of the saving clause under Section 531(2)(b) of the BNSS and Section 6A of the general clauses Act, 1897. It was argued that the amendment should be considered a notification or order under a repealed law and was thus saved.
The applicant's counsel submitted that the state amendment was a legislative enactment and not protected by section 531(2)(b), and that the field was now occupied exclusively by Section 482 of the BNSS.
The court held that the U.P. amendment to Section 438 CrPC, which barred anticipatory bail for NDPS offences, does not survive the repeal of the CrPC and enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023. The court rejected the state's argument that the U.P. amendment could be saved under section 531(2)(b) BNSS or section 6 of the general clauses Act.
The court also referred to Article 254(2) of the Constitution, observing that although the U.P. amendment had received Presidential assent, the enactment of Section 482 BNSS, being a central legislation enacted later, would prevail in case of repugnancy.
The court said, 'Even in terms of the proviso to Article 254(2) of the Constitution of India, there being a considerable difference in the provisions of anticipatory bail between Act No. 4 of 2019 and Section 482 BNSS 2023… it is the provisions of re-enacted Section 482 BNSS 2023, which shall prevail.'
Accordingly, the court allowed the anticipatory bail application moved by the applicant.
MANOJ KUMAR SINGH
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