Introduction:

In a landmark ruling, the Allahabad High Court in the case titled Sudhir @ Sudhir Kumar Chaurasia vs. State Of U.P. Thru. The Prin. Secy. Ministry Of Home And 3 Others, has held that anticipatory bail applications in Uttar Pradesh, even under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), are now maintainable following the enforcement of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. This significant judgment came from the bench of Justice Manish Mathur, who concluded that the earlier bar imposed on anticipatory bail under the state’s Criminal Procedure Code (CrPC) as amended by the UP Amendment Act of 2018 no longer holds legal effect after the implementation of the BNSS. The Court clarified that BNSS, as a central law, has effectively overridden the UP-specific amendments to the CrPC, particularly Section 438(6), which had previously disallowed anticipatory bail in serious offences such as those under the NDPS Act. The case arose when the petitioner Sudhir Kumar Chaurasia approached the Court for anticipatory bail after NDPS Act charges were added to an FIR already filed against him under various sections of the IPC. The ruling not only addressed the issue of legal maintainability of the anticipatory bail plea but also examined the merits of the petitioner’s case and ultimately allowed the anticipatory bail with conditions.

Arguments of the Petitioner:

The petitioner, represented by Advocate Prabhat Kumar Mishra, argued that the addition of NDPS charges at a later stage in an existing FIR did not justify the denial of anticipatory bail, particularly in light of the recent enactment of the BNSS which supersedes the earlier CrPC provisions as amended by Uttar Pradesh. It was pointed out that the FIR initially included offences under Sections 420, 467, 468, and 471 of the IPC, and only subsequently was Section 22(c) of the NDPS Act appended. Mishra submitted that the BNSS, being a comprehensive central legislation, had come into effect and reintroduced anticipatory bail provisions under Section 482, thereby making the previous UP-specific bar under Section 438(6) obsolete. The petitioner also asserted that in the absence of the Forensic Science Laboratory (FSL) report, it remained unclear whether the codeine allegedly recovered from the petitioner qualified as a commercial quantity, which is critical in determining the severity under NDPS law. Therefore, denial of anticipatory bail in such a legally uncertain and factually incomplete situation would violate the petitioner’s right to liberty under Article 21 of the Constitution. The petitioner emphasized that BNSS does not retain or reflect the earlier prohibitions under Section 438(6) CrPC and thus, anticipatory bail should be held maintainable even in NDPS cases.

Arguments of the State:

On the other side, the State, represented by Government Advocate Dr. V.K. Singh and supported by Additional Government Advocate Nikhil Singh, raised a preliminary objection on the maintainability of the anticipatory bail application. It was contended that since the case involved the NDPS Act, the bar under Section 438(6) CrPC (as applicable in Uttar Pradesh through the 2018 Amendment) rendered the application non-maintainable. The State also argued that though the CrPC had been repealed and replaced by the BNSS, the saving clause under Section 531(2)(b) of the BNSS allowed the continuance of State amendments that had received Presidential assent, such as the 2018 UP Amendment Act. By referring to Sections 6, 6-A, 8, and 24 of the General Clauses Act, 1897, the State maintained that the 2018 Amendment Act would continue to apply even post the enforcement of BNSS. They further submitted that the UP CrPC Amendment Act should be treated as a “notification” within the meaning of Section 2(p) of BNSS, thus warranting protection under the BNSS saving clause. Consequently, they insisted that the previous bar on anticipatory bail under NDPS law should still apply in Uttar Pradesh, and that the petitioner must seek regular bail only.

Court’s Observations and Judgment:

The High Court rejected the preliminary objections raised by the State, holding that with the coming into force of the BNSS, the bar imposed by the 2018 UP Amendment Act under Section 438(6) CrPC no longer holds the field. Justice Manish Mathur noted that BNSS is a central legislation that effectively repeals the CrPC and thus, as per Article 254(2) of the Constitution, any repugnancy between the State and Central laws must be resolved in favour of the Central legislation. The Court emphasized that the 2018 Amendment Act could not be classified as a “notification” since it came into effect from the date of Presidential assent and not from publication in the Gazette. Therefore, it is a legislative enactment, and not a notification saved under Section 531(2)(b) BNSS. The Court observed that Article 246 of the Constitution differentiates clearly between legislative enactments and notifications, and any enactment passed under Article 246 cannot be deemed a notification by any stretch of imagination. Furthermore, the Court analyzed the differences between the repealed Section 438 CrPC and the newly enacted Section 482 BNSS, particularly highlighting the absence of prohibitive clauses in the latter. Justice Mathur also considered the provisions of the General Clauses Act and found that only Section 6 was marginally relevant and even that could not override the express terms of BNSS, which did not intend to retain the effect of the UP Amendment Act. Additionally, referring to the proviso to Article 254(2), the Court reiterated that in the absence of an explicit saving clause in BNSS, the Parliament’s new legislation must prevail over any existing state law, even if the latter had earlier received Presidential assent. Consequently, the Court ruled that anticipatory bail applications are now legally maintainable in Uttar Pradesh, even in NDPS Act cases.

On the merits of the case, the Court considered that Section 22(c) of the NDPS Act was added only later and was not part of the original charges in the FIR, and that the nature and quantity of the alleged contraband was yet to be verified due to the pending FSL report. Given the uncertainty regarding the classification of the quantity of codeine and in the interest of justice, the Court held that it was a fit case for granting anticipatory bail. The anticipatory bail was thus allowed, subject to conditions ensuring the petitioner’s cooperation with the investigation and regular appearance before the concerned authorities. The Court’s reasoning was further bolstered by its reference to the recent ruling in Raman Sahni vs. State Of U.P. Addl. Chief Secy. Deptt. Of Home Lko, 2025 LiveLaw (AB) 201, which dealt with similar issues and reinforced the interpretation favouring the maintainability of anticipatory bail under BNSS.