Anticipatory Bail Application U/S. 482 BNSS Maintainable Even For NDPS Offences In UP: Allahabad High Court
The Allahabad High Court, while granting anticipatory bail to an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985, rejected the preliminary objection raised by the State that such relief was barred under Section 438(6) CrPC as amended in Uttar Pradesh. The Court held that with the repeal of the CrPC and the coming into force of BNSS, 2023, the amended Section 482 BNSS has superseded the State amendment.
A Single Bench of Justice Manish Mathur observed, “It is quite evident that provisions of Section 482 BNSS 2023 would prevail over amendment made by Act No. 4 of 2019… 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, in the considered opinion of this Court, it is the provisions of re-enacted Section 482 BNSS 2023, which shall prevail.”
The Court explained, “From perusal of differences between erstwhile provisions of Section 438 CrPC (with UP amendment) and newly enacted Section 482 BNSS 2023, it is evident that Parliament made a conscious decision to do away with the prohibitions indicated in Section 438(6) CrPC, and that the re-enacted provisions can be said to have been deliberately obliterated by Parliament.”
Advocate Pradeep Kumar appeared for the Applicant, while the Government Advocate Dr. V.K. Singh appeared for the State.
Brief Facts
The Applicant had earlier been granted anticipatory bail under Sections 420, 467, 468, and 471 IPC. 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 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 It was argued that the amendment should be considered a notification or order under a repealed law and was thus saved.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, supported by amici curiae, argued 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.
Reasoning of the Court
The Court held that for purposes of Section 531(2)(b) of the BNSS, the State amendment introduced by U.P. Act No. 4 of 2019 could not be considered a “notification.” It noted, “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 Bench noted that the section merely saves certain acts done, orders issued, or proceedings initiated under the repealed enactment, but does not preserve statutory amendments passed under legislative authority. “The word ‘notification’ would therefore pertain to such notifications and orders issued in terms of the provisions of an Act. It is for this reason that the notification under the CrPC, 1973 made by the State Government for constituting an Executive Committee for the Nirbhaya Fund has been considered to be saved under Section 531(2)(b) of the BNSS”, it added.
The Court adverted to Section 6 of the General Clauses Act and observed that a mere repeal does not by itself continue earlier state laws unless there is a specific saving provision or a “different intention” expressed in the repealing enactment.
The Bench referred to the decision of the Supreme Court rulings in Mohar Singh v. State of Punjab, and noted that for continued operation of any enactment or any provision of such enactment so repealed would require specific intention in the repealing enactment.
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. It stated, “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.”
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 Nagrik 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.
Accordingly, the Court allowed the anticipatory bail application.
Cause Title: Sudhir @ Sudhir Kumar Chaurasia v. State of U.P. & Ors. (Neutral Citation: 2025:AHC-LKO:34988)
Appearance:
Applicant: Advocates Pradeep Kumar, Adarsh Tripathi, Prabhat Kumar Mishra
State: Government Advocate Dr. V.K. Singh; AGA Nikhil Singh
