Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, anticipatory bail plea would now be maintainable in NDPS Act cases

In a significant order, the Allahabad High Court has held that with the enforcement of Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, anticipatory bail plea would now be maintainable in NDPS Act cases in the state of Uttar Pradesh, as the previous bar under the state’s CrPC amendment has effectively been repealed by the BNSS.

A bench of Justice Manish Mathur ruled that with the enactment of the BNSS, the restriction imposed by the Criminal Procedure Code (UP Amendment) Act, 2018, specifically Section 438(6), which barred anticipatory bail in NDPS Act cases, no longer holds effect.

The Court held that BNSS, being a central legislation, overrides the state-specific amendment to the CrPC, and thus, the bar on anticipatory bail in such cases in Uttar Pradesh stands removed.

For context, Section 438 of the CrPC empowered courts to grant anticipatory bail to persons accused of non-bailable offences. However, in Uttar Pradesh, this provision was removed in 1976 during the Emergency. It was later revived in 2019 by the Criminal Procedure Code (UP Amendment) Act, 2018 [UP Act No. 4 of 2019].

This revival, however, came with a crucial restriction as Section 438(6) explicitly barred the grant of anticipatory bail in cases involving certain serious offences, including those under the NDPS Act, the Unlawful Activities (Prevention) Act (UAPA), the Official Secrets Act, the UP Gangsters Act, and offences punishable with the death penalty.

The High Court’s ruling came while dealing with a plea moved by one Sudhir Kumar Chaurasia, seeking anticipatory bail after Section 22(c) of the NDPS Act was added to an FIR previously lodged against him under Sections 420, 467, 468 and 471 IPC.

Preliminary objection and arguments advanced

At the very outset, the counsel for the State raised a preliminary objection regarding the maintainability of the anticipatory bail application in view of the fact that it pertains to the NDPS Act and therefore is not maintainable in terms of Section 438(6) CrPC (as applicable to the state of UP).

It was submitted that although CrPC has subsequently been repealed by the BNSS, the provisions incorporated by means of amendment in Section 438 CrPC, would continue in the same terms in view of Section 531(2)(b) of BNSS.

Referring to Sections 6, 6-A, 8, and 24 of the General Clauses Act 1897, it was argued where a Central Act has been amended by a State legislature and the said amendment has received Presidential assent – such as in the case of the Criminal Procedure Code (UP Amendment) Act, 2018 – it would continue to hold the field under Article 254(2) of the Constitution of India.

It was further contended that in such cases, the subsequent repeal of the Central Act would not affect the enforceability of the State law.

The Government Advocate specifically relied on the expression ‘notification published’ and submitted that the UP CrPC Amendment Act, 2018, could be treated as a ‘notification’ within the meaning of Section 2(p) of BNSS and therefore, the same would be protected under the saving clause provided in Section 531(2)(b) BNSS.

High Court’s observations

However, the bench disagreed with this submission as it observed that the 2018 UP Amendment Act came into effect from the date it received the President’s assent, not from the date it was published in the Official Gazette and as such, it could only be regarded as a legislative enactment under Article 246 of the Constitution, and not a ‘notification’, which typically takes effect from the date of its publication in the Gazette.

“ The difference between a legislation and a notification would be quite apparent from a perusal of Article 246 of Constitution of India whereunder powers have been conferred for making laws in terms of 7th Schedule to the Constitution. By no stretch of imagination can it be said that the laws promulgated in terms of Article 6 246 of the Constitution of India would come within purview of a notification and not an enactment,” the Court remarked.
Accordingly, the Court held that since Section 531 of BNSS makes no mention of legislative enactments, the provision under Section 531(2)(b) cannot be treated as a saving clause for U.P. Act No. 4 of 2019.

Addressing the second issue as to whether the re-enactment of Section 438 CrPC as Section 482 BNSS could be saved by Sections 6, 6-A, 8, and 24 of the General Clauses Act, the Court found a clear and material difference between the anticipatory bail provisions that applied in the state before the BNSS came into force and those now incorporated under Section 482 Of BNSS.

“ The primary difference in both the provisions apart from the prohibitions indicated in Section 438(6) CrPC is that the factors indicated for grant of anticipatory bail under Section 438(1) CrPC are conspicuously absent under Section 482 BNSS,” the Court noted.
Furthermore, the Court held that, except for Section 6 of the General Clauses Act, none of the other provisions relied upon by the Government Advocate were relevant in the present case.

For context, Section 6 provides that if the legislature intends to preserve the provision or the effect of a repealed law, it must clearly express that intention in the new enactment. In this case, the Court noted that BNSS contains no such indication preserving the effect of the 2018 UP Amendment Act.

In this regard, the Court also referred to proviso to Article 254(2) of the Constitution of India which provides 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.

“ …it is evident 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 bench noted.
Therefore, the Court concluded that since the BNSS does not express any intention to retain the effect of the UP CrPC Amendment Act, 2018, and considering the substantial differences between Section 438 CrPC and Section 482 BNSS, the re-enacted provisions under BNSS must prevail.

Consequently, the Court held that under Section 482 BNSS, anticipatory bail is maintainable even in cases involving the NDPS Act. To reach this conclusion, the bench also referred to the HC’s recent ruling in the case of Raman Sahni vs. State Of U.P. Addl. Chief Secy. Deptt. Of Home Lko 2025 LiveLaw (AB) 201

On the Merits of the Case

Turning to the merits of the case, the Court noted that, based on the record and subject to evidence during trial, it appeared that the initial chargesheet filed against the applicant did not include Section 22(c) of the NDPS Act 1985, as the same was added at a later stage.

The Court observed that this would require detailed examination by the trial court, including whether the quantity of Codeine allegedly recovered from the accused exceeds the prescribed commercial limit under the relevant rules.

At present, the Court noted, this determination is not possible due to the absence of the FSL (Forensic Science Laboratory) report. Accordingly, the Court found it a fit case to grant the applicant anticipatory bail, subject to certain conditions.

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