Anticipatory Bail Maintainable in NDPS Cases: 482 BNSS

In a significant ruling, the Allahabad High Court held that an Anticipatory Bail application would be maintainable in cases where sections of the NDPS Act . There is a considerable difference in the provisions of anticipatory bail as amended by UP Act No.4 of 2019 and the re-enacted provisions of anticipatory bail under section 482 BNSS .

Anticipatory Bail Under Section 482 BNSS in NDPS Cases

The Allahabad High Court considered the difference between the provisions of section 438 CrPC applicable in the State of Uttar Pradesh and the provisions of Section 482 of the BNSS and held that the anticipatory bail restriction contained in the UP amendment to section 438 CrPC would not apply under section 482 of the BNSS. It is the provisions of re-enacted section 482 BNSS , 2023 that shall prevail .

The High Court explained that the provisions of section 482 BNSS , 2023 shall prevail over the amendment made by Act.4 of 2019.

Brief Facts

The first anticipatory bail had been granted under sections 420,467,468 and 471 IPC in respect of same crime number. The present anticipatory bail application has been filed in respect of additional section 22(c) of the NDPS Act .

The learned counsel for the State raised a preliminary objection regarding the maintainability of anticipatory bail application, as it relates to the NDPSAct , hence, it is not maintainable under section 438(6) CrPC. It is submitted that earlier the provisions of section 438 CrPC relating to the anticipatory bail were deleted for the Uttar Pradesh Act No. 16 of 1976 and re-incorporated through UP Act No.4 2019 and it is also submitted that the provisions of anticipatory bail were subject to the bar under section 438(6) CrPC, which clearly indicates that the provisions of anticipatory bail would not apply in case of NDPS Act.

The state further stated that the provisions inserted by means of amendment in section 438 CrPC would continue to be in force in the same terms in view of section 531(2) (b) of the BNSS.

It is pertinent that the learned Government Advocate has placed special reliance on the words 'published notification' to submit that the U.P. Act No. 4 of 2019 was in the nature of a notification as per Section 2(p) BNSS and therefore would be saved as per Section 531(2)(b) BNSS. It is also submitted that since the said Act was published in the Official Gazette as per Section 3(39) of the General Clauses Act, the said provision would specifically apply.

Issues

Whether the provisions of section 531(2) (b) BNSS can be construed as a clause saving the provisions of U.P Act No.4, 2019?

Whether the re-enactment of section 438 CrPC as 482 BNSS inserted through U.P Act No. 4, 2019 would save sections 6, 6-A, 8 and 24 of the General Clause Act?

Court’s Reasoning

The High Court observed that this court is unable to accept the contention of the learned Government Advocate that the U.P Act No.4, 2019 would fall within the definition of the Notification and therefore would be saved. The Court noted that by no stretch of imagination can it be said that the laws promulgated in terms of Article 246 of the Constitution of India would come within purview of a notification and not an enactment.

The Hon’ble Court considered that Section 531 BNSS does not indicate any terminology relating to legislative enactments, the provisions of Section 531(2) (b) BNSS cannot be termed as a saving clause in relation to U.P Act No.4, 2019.

The High Court further stated that Section 6 of the General Clause Act, a ‘different intention’ to continue the repealed provisions is required to be clearly stated in the subsequent enactment, the provisions of Article 254(2) would apply under which in case of any conflict or difference with the subsequent enactment, the law made by parliament would prevail.

The Court also held that the subsequent enactment of BNSS, 2023 does not reflect any specific intention to continue the State amendment made through Act No. 4 of 2019 and even in terms of the provision of Article 254(2) of the Constitution of India, there being considerable difference in the provisions of anticipatory bail between Act No. 4 of 2019 and Section 482 BNSS 2023, in the considered opinion of this Court, it is the provisions of the re-enacted Section 482 BNSS 2023, which would prevail.

Conclusion

It is concluded that the provisions of section 482 BNS, 2023 would prevail over amendment made by Act No.4, 2019.

The court held that an Anticipatory bail application would be maintainable in cases where sections of the NDPS Act have been made applicable in the FIR.

Accordingly, the Hon'ble High Court allowed the Anticipatory bail .

FAQs

1. Can an anticipatory bail application be filed in cases where sections of the NDPS Act are applicable?

- Yes, the Allahabad High Court held that an anticipatory bail application would be maintainable in such cases.

2. What is the difference between the provisions of anticipatory bail under UP Act No.4 of 2019 and Section 482 BNSS?

- The High Court explained that the provisions of re-enacted Section 482 BNSS, 2023 shall prevail over the UP Act No.4 of 2019.

3. Can the provisions of section 438 CrPC applicable in Uttar Pradesh be applied in NDPS cases?

- The High Court held that the anticipatory bail restriction contained in the UP amendment to Section 438 CrPC would not apply under Section 482 of the BNSS.

4. Can the provisions of section 531(2) (b) BNSS save the provisions of UP Act No.4, 2019?

- The High Court observed that the provisions of section 531(2) (b) BNSS cannot be construed as a saving clause for UP Act No.4, 2019.

5. Can an anticipatory bail application be allowed in cases where NDPS Act sections are applicable in the FIR?

- Yes, the High Court allowed the anticipatory bail in such cases.

6. Can the provisions of UP Act No.4, 2019 override the re-enacted provisions of Section 482 BNSS?

- No, the High Court held that the provisions of re-enacted Section 482 BNSS, 2023 would prevail over UP Act No.4, 2019.

7. Is there a bar on filing for an anticipatory bail application if the NDPS Act is invoked in the FIR?

- No, an anticipatory bail application can be maintained in such cases.

8. What steps were taken by the Court in allowing the anticipatory bail application in NDPS cases?

- The Court considered the provisions of section 482 BNSS, 2023 to prevail over the UP Act No.4, 2019 and allowed the anticipatory bail.

9. Can the provisions of Section 6 of the General Clause Act save the amended provisions of Section 438 CrPC under UP Act No.4, 2019?

- The High Court held that the provisions of Section 6 of the General Clause Act cannot save the provisions of UP Act No.4, 2019 in the context of anticipatory bail in NDPS cases.

Case Title: - Sudhir @ Sudhir Kumar Chaurasia vs. State of UP and Ors. 447/2025

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Anticipatory Bail Maintainable in NDPS Cases: 482 BNSS