Anticipatory Bail Application U/S. 482 BNSS Maintainable Even For NDPS Offences In UP

1. Heard Mr. Prabhat Kumar Mishra learned counsel for applicant and Dr.

V.K. Singh learned Government Advocate assisted by Mr. Nikhil Singh

learned Additional Government Advocate on behalf of State. For better

appreciation of controversy this Court has also heard Mr. S.K.Singh, Mr.

Atul Verma, Mr. Gaurav Mehrotra, Mr. Nadeem Murtza and Mr. Dilip

Kumar Pandey, Advocates as learned Amicus Curiae.

2. First Anticipatory bail application has been filed with regard to Section

22(c) of the NDPS Act 1985 registered in Police Station Kotwali, District

Barabanki.

3. Earlier with regard to same case crime number, anticipatory bail had

been granted to the applicant under Sections 420, 467, 468 and 471 IPC in

anticipatory bail application No. 1713 of 2024. The present anticipatory

bail application has been filed with regard to added Section 22(c) of the

NDPS Act.

4. At the very outset, learned counsel for State has raised a preliminary

objection regarding maintainability of anticipatory bail application in

view of the fact that it pertains to NDPS Act and therefore is not

maintainable in terms of Section 438(6) Cr.P.C. It is submitted that earlier

the provisions of Section 438 Cr.P.C. pertaining to anticipatory bail were

omitted for the State of U.P. by means of U.P. Act No.16 of 1976 and

were re-incorporated by means of U.P. Act No. 4 of 2019. It is submitted

that the aforesaid provisions of anticipatory bail were subject to embargo

under Section 438(6) which clearly indicated that provisions of

anticipatory bail would not be applicable in case of NDPS Act. It is

submitted that although Cr.P.C. has subsequently been repealed by the

Bhartiya Nagrik Suraksha Sanhita 2023, the provisions incorporated by

means of amendment in Section 438 Cr.P.C. would continue in the same

terms in view of Section 531(2)(b) of BNSS. Learned counsel has also

adverted to provisions of Sections 6, 6-A, 8 and 24 of the General Clauses

Act 1897 to substantiate his submission that in case where a Central Act

has been amended by State legislature by means of an enactment and has

subsequently been granted assent by the President of India, the State

enactment would continue to govern the field in terms of Article 254(2) of

the Constitution of India and in such a situation the Repeal of Central Act

would be immaterial. Learned counsel has specifically emphasized upon

Section 6-A of General Clauses Act to substantiate his pleading that since

different intention appears, the Repeal of Central Act would not affect the

continuance of amendment of Central Act which was made by the state

enactment in the year 2019. Learned counsel has also placed reliance on

Section 2(p) BNSS 2023 to submit that the definition of ‘notification’

under Section 2(p) BNSS would be a notification published in the official

gazette which is in turn defined in Section 3(39) of the General Clauses

Act. It is therefore submitted that the term of ‘notification’ as appearing in

Section 531(2)(b) BNSS would construe a saving clause of the

amendment made in the year 2019 by the state amendment in Section 438

Cr.P.C.

5. Learned counsel has placed reliance on following case laws:-

State of Punjab versus Harnek Singh (2002) 3 SCC 481; Vinay Kumar

Pandey versus State of U.P. and others, decided by Division Bench of this

Court in Criminal Misc. Writ Petition No. 13827 of 2024; Jitendra Pratap

Singh versus State of U.P. a Division Bench of this Court in Criminal

Misc. Anticipatory Bail Application No. 144 of 2024.

6. Learned counsel appearing for applicant and learned Amicus Curiae

have refuted submissions advanced by learned counsel for State with

submission that it is in fact proviso to Article 254(2) of the Constitution of

India which would govern the field and not provisions of the General

Clauses Act which have been relied upon by learned Government

Advocate. It is submitted that in the present case, it is Section 6 of the

General Clauses Act which would be applicable.

7. It has been further submitted that Section 531(2)(b) does not indicate

any saving clause pertaining to legislative power of the State Government

and indicates only administrative orders which do not come within realm

of enactment in terms of Article 246 of the Constitution of India and

therefore repeal of the Central Act would in fact mean to be a repeal

which obliterates the entire Act including any State amendment made

therein which would also include the State enactment incorporated in

Section 438 by the State enactment in the year 2019. Learned counsel has

also placed reliance on following judgments:-

State of U.P. versus Hirendra Pal Singh (2011) 5 SCC 305; State of

Punjab versus Mohar Singh (1954) 2 SCC 483; Manphul Singh Sharma

versus Ahmadi Begum, (1994) 5 SCC 456; Gajraj Singh and others versus

State Transport Appellate Tribunal and Others (1997) 1 SCC 650; Zaver

Bhai Amaidas versus State of Bombay (1954) 2 SCC 345;Naeem Bano

alias Gaindo versus Mohd Rahees & another, special leave petition (c)

No. 16460 of 2023

8. Upon consideration of submissions advanced by learned counsel for

parties the following questions arise for consideration:-

(i) Whether the provisions of Section 531(2)(b) BNSS can be considered

to be a clause saving provisions of U.P. Act No.4 of 2019 ?.

(ii) Whether the re-enactment of Section 438 Cr.P.C. as 482 BNSS as

incorporated by means of U.P. Act No.4 of 2019 would be saved in terms

of Sections 6, 6-A, 8 and 24 of General Clauses Act ?

Question No.1

9. With regard to aforesaid aspect, provisions of Section 531(2)(b) BNSS

are required to be examined and are as follows:-

“(b) all notifications published, proclamations issued, powers conferred, forms

provided by rules, local jurisdictions defined, sentences passed and orders, rules and

appointments, not being appointments as Special Magistrates, made under the said

Code and which are in force immediately before the commencement of this Sanhita,

shall be deemed, respectively, to have been published, issued, conferred, specified,

defined, passed or made under the corresponding provisions of this Sanhita;

10. A perusal of aforesaid provision indicates the repeal and savings

clause to the effect that all notifications published etc. defining

jurisdictions, sentences passed which were enforced immediately before

commencement of the Sanhita would be deemed to have been published,

issued, conferred, specified, defined, passed or made under the

corresponding provisions of the Sanhita.

11. It is relevant that learned Government Advocate has placed specific

reliance on the word ‘notification published’ to submit that U.P. Act No.4

of 2019 was in the nature of a notification in terms of Section 2(p) BNSS

and therefore would be saved in terms of Section 531(2)(b) BNSS. It is

further submitted that since the aforesaid Act was published in the official

gazetted in terms of Section 3(39) of the General Clauses Act, the said

provision would specifically apply.

12. It is however a relevant factor that U.P. Act No.4 of 2019 was

promulgated under Article 246 of the Constitution of India but does not

indicate any specific date from which it would come into effect. For the

said purpose, it would be relevant to advert to Section 5 of the General

Clauses Act which is as follows:-

“5. Coming into operation of enactments-

.[(1) Where any Central Act is not expressed to come into operation on a particular

day, then it shall come into operation on the day on which it receives the assent,-

(a) in the case of a Central Act made before the commencement of the Constitution, of

the Governor-General, and

(b) in the case of an Act of Parliament, of the President.][* * * *]

(3) Unless the contrary is expressed, a 3

[Central Act] or Regulation shall be construed

as coming into operation immediately on the expiration of the day preceding its

commencement.”

13. In terms of aforesaid, the said U.P. Act No.4 of 2019 came into effect

from the date it received assent from the President of India and not from

the date it was notified in the official gazette. In the considered opinion of

this Court, there is substantial difference in an enactment by State

Legislature in terms of Article 246 of Constitution of India and a

notification which would require to be effective from the date it is notified

in the official gazette. The primary difference being that an enactment in

terms of Section 5 of General Clauses Act would come into effect from

the date it received assent either from the President of India or Governor

of State respectively with its notification in the official gazette being

immaterial unless specifically indicated. It is only in case of specific

orders issued by the Central or State Government in terms of powers

conferred by any statute which would come within the term of a

notification, which would be effective only from the date it is notified in

the official gazette, and would thus come within realm of administrative

order or at best, subordinate legislation.

14. In such circumstances, this Court is unable to appreciate the

submission of learned Government Advocate that U.P. Act No. 4 of 2019

would come within definition of notification and would therefore be

saved.

15. The aforesaid aspect is more so in view of Section 3(19) of the

General Clauses Act which defines an enactment to include a regulation

and is therefore quite distinct from a notification which has clearly not

been made a part of ‘enactment’. 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

246 of the Constitution of India would come within purview of a

notification and not an enactment.

16. Distinction between an enactment and a notification can also be

examined from the aspect that all enactments may require to be notified

but all notifications do not come within purview of an enactment. The

said concept can be readily explained in the manner that an enactment is

referable to constitutional power exercised under Article 246 of the

Constitution of India with subordinate legislation being any rule or

regulation issued or notified in terms of power conferred by such statute.

The scope of such an enactment or subordinate legislation is directly

referable either to the Constitution of India or to the enactment under

which such power is derived whereas a notification by its very nature can

be issued by any authority, not necessarily being a Parliament or

Legislature, to fill any void which is not covered either by an enactment

or subordinate legislation. Such an order which can be passed by

administrative authorities in exercise of executive power do not require

any imprimatur of Parliament or Legislature.

17. The concept is also explained by Supreme Court in the case of State

of Tamil Nadu versus P. Krishnamurti and others (2006) 4 SCC 517 in

the following manner:-

“23. In Union of India v. Cynamide India Ltd. [(1987) 2 SCC 720] this Court

differentiated between legislative acts and non-legislative acts thus: (SCC pp.

735-36, para 7)

“The distinction between the two has usually been expressed as ‘one between

the general and the particular’. ‘A legislative act is the creation and

promulgation of a general rule of conduct without reference to particular

cases; an administrative act is the making and issue of a specific direction or

the application of a general rule to a particular case in accordance with the

requirements of policy’. ‘Legislation is the process of formulating a general

rule of conduct without reference to particular cases and usually operating in

future; administration is the process of performing particular acts, of issuing

particular orders or of making decisions which apply general rules to

particular cases.’ It has also been said: ‘Rule-making is normally directed

toward the formulation of requirements having a general application to all

members of a broadly identifiable class’ while, ‘an adjudication, on the other

hand, applies to specific individuals or situations’. But, this is only a broad

distinction, not necessarily always true. Administration and administrative

adjudication may also be of general application and there may be legislation of

particular application only. That is not ruled out. Again, adjudication

determines past and present facts and declares rights and liabilities while

legislation indicates the future course of action. Adjudication is determinative

of the past and the present while legislation is indicative of the future. The

object of the rule, the reach of its application, the rights and obligations arising

out of it, its intended effect on past, present and future events, its form, the

manner of its promulgation are some factors which may help in drawing the

line between legislative and non-legislative acts.”

18. It is thus evident that notifications can be issued even by

administrative authorities in exercise of their executive power whereas

enactments can be promulgated only in terms of powers conferred by the

Constitution of India.

19. In view thereof, in the considered opinion of this Court, since Section

531 BNSS not indicating any terminology pertaining to legislative

enactments, the provisions of Section 531(2)(b) BNSS can not be termed

to be a saving clause with regard to U.P. Act No.4 of 2019.

20. It is also a relevant fact that for the purposes of proper examination of

provisions of Section 531 BNSS, the provision in its entirety is required to

be examined and not a few sentences incorporated therein. In terms of

principles of interpretation of statute, the aspect of the principle ‘ejusdem

generis’ has particular application along with the principle of ‘noscitur a

sociis’ which has been explained by Supreme Court in the case of

Maharashtra University of Health Sciences versus Satchikitsa

Prasarak Mandal (2010) 3 SCC 786 in the following terms:-

” 27. The Latin expression “ejusdem generis” which means “of the same kind or

nature” is a principle of construction, meaning thereby when general words in a

statutory text are flanked by restricted words, the meaning of the general words are

taken to be restricted by implication with the meaning of the restricted words. This is a

principle which arises “from the linguistic implication by which words having literally

a wide meaning (when taken in isolation) are treated as reduced in scope by the

verbal context”. It may be regarded as an instance of ellipsis, or reliance on

implication. This principle is presumed to apply unless there is some contrary

indication [see Glanville Williams, The Origins and Logical Implications of the

Ejusdem Generis Rule, 7 Conv (NS) 119].

28. This ejusdem generis principle is a facet of the principle of noscitur a sociis. The

Latin maxim noscitur a sociis contemplates that a statutory term is recognised by its

associated words. The Latin word “sociis” means “society”. Therefore, when general

words are juxtaposed with specific words, general words cannot be read in isolation.

Their colour and their contents are to be derived from their context. (See similar

observations of Viscount Simonds in Attorney General v. Prince Ernest Augustus of

Hanover [1957 AC 436 : (1957) 2 WLR 1 : (1957) 1 All ER 49 (HL)] , AC at p. 461.)”

21. Upon applicability of aforesaid judgment in the present facts and

circumstances, it is a relevant fact that general words in a section of

enactment can not be read in isolation but their contents are required to be

defined from their context.

22. In the present case the provisions of Section 531(2)(b) BNSS clearly

refers to notifications or proclamations issued whereby powers were

conferred, local jurisdictions were defined, sentences were passed and

orders of appointments were made under the Code. Evidently Section

531(2)(b) pertains only to procedural aspect which were indicated under

Cr.P.C. and were required to be deemed to be made under corresponding

provisions of the Sanhita. The said provision can not be construed to be a

saving clause for continuation of specific prohibition with regard to

maintainability of legal remedies available to an accused before the courts

of law since the said aspect would not come within any of the terms in the

general context indicated under Section 531(2) (b) BNSS.

23. With regard to the aspect of notification viz-a-viz legislative

eneactment, learned Government advocate has placed reliance on the

judgment in the case of State of Punjab versus Harnek Singh (2002) 3

SCC 481.

24. However a bare perusal of the aforesaid judgment will make it evident

that the same is inapplicable in present facts and circumstances since in

the said case, dispute pertained to notification issued by the State

Government in exercise of powers conferred upon it under section 5(A) of

the Prevention of Corporation Act 1947. It is therefore evident that the

aspect engaging attention of Supreme Court actually pertained to power

conferred upon the State Government under legislative enactment and not

to the enactment itself.

25. Similarly in the case of Vinay Kumar Pandey versus State of U.P.

and others, decided by Division Bench of this Court in Criminal Misc.

Writ Petition No. 13827 of 2024, the aspect again was power exericsed

by the State Government under Section 10 of the Criminal Law

(Amendmnent) Act 1932. Evidently the aforesaid case also does not lay

down any proposition of law that a notification issued under legislative

enactment itself can be deemed to be a legislative enactment.

26. The case of Jitendra Pratap Singh versus State of U.P. a Division

Bench of this Court in Criminal Misc. Anticipatory Bail Application

No. 144 of 2024 has merely enunciated the law that when a words of

statute are clear and unambiguous, courts must give effect to the

legislative intent and literal interpretation. Obviously the aforesaid

proposition of law is required to be followed in the circumstances

indicated therein but again is not a law for the proposition that a

notification issued by the State exercising statutory powers itself can be

considered to be at par with statute.

27. The aforesaid question therefore is answered negatively against the

State.

Question No.2

28. With regard to aforesaid question, it would be necessary to advert to

Section 438 Cr.P.C. as included by U.P. Act No.4 of 2019 and 482 BNSS

2023 which are as follows:-

 Section 438 Cr.P.C. Section 482 BNSS, 2023

“438. Direction for grant bail to person

apprehending arrest.- [(1) Where any

person has reason to believe that he may

be arrested on accusation of having

committed a non-bailable offence, he may

apply to the High Court or the Court of

Session for a direction under this section

that in the event of such arrest he shall be

released on bail; and that Court may,

after taking into consideration, inter alia,

the following factors, namely-

“482. Direction for grant of bail to

person apprehending arrest.-

(1)When any person has reason to believe

that he may be arrested on an accusation

of having committed a non-bailable

offence, he may apply to the High Court

or the Court of Session for a direction

under this section; and that Court may, if

it thinks fit, direct that in the event of such

arrest, he shall be released on bail.

(2)When the High Court or the Court of

(i)the nature and gravity of the

accusation;

(ii)the antecedents of the applicant

including the fact as to whether he has

previously undergone imprisonment on

conviction by a Court in respect of any

cognisable offence;

(iii)the possibility of the applicant to flee

from justice; and

(iv)where the accusation has been made

with the object of injuring or humiliating

the applicant by having him so arrested,

either reject the application forthwith or

issue an interim order for the grant of

anticipatory bail:

Provided that, where the High Court or,

as the case may be, the Court of Session,

has not passed any interim order under

this sub-Section or has rejected the

application for grant of anticipatory bail,

it shall be open to an officer incharge of a

police station to arrest, without warrant,

the applicant on the basis of the

accusation apprehended in such

application.

(2) Where the High Court or, as the case

may be, the Court of Session, considers it

expedient issue an interim order to grant

anticipatory bail under sub-section (1),

the Court shall indicate herein the date,

on which the application for grant of

anticipatory bail shall be finally heard

for passing an order thereon, as the

Court may deem fit, arid if the Court

passes any order granting anticipatory

bail, such order shall include inter alia

the following conditions, namely-

(1) that the applicant shall make himself

available for interrogation by a police

officer as and when required;

(ii) that the applicant shall not, directly

or indirectly, make any inducement,

threat or promise to any person

acquainted with the facts of the case so as

to dissuade him from disclosing such

facts to the Court or to any police officer,

(iii) that the applicant shall not leave

India without the previous permission of

Session makes a direction under subsection (1), it may include such

conditions in such directions in the light

of the facts of the particular case, as it

may think fit, including-

(i) a condition that the person shall make

himself available for interrogation by a

police officer as and when required;

(ii) a condition that the person shall not,

directly or indirectly, make any

inducement, threat or promise to any

person acquainted with the facts of the

case so as to dissuade him from

disclosing such facts to the Court or to

any police officer;

(iii) a condition that the person shall not

leave India without the previous

permission of the Court;

(iv) such other condition as may be

imposed under sub-section (3) of section

480, as if the bail were granted under

that section.

(3) If such person is thereafter arrested

without warrant by an officer in charge of

a police station on such accusation, and

is prepared either at the time of arrest or

at any time while in the custody of such

officer to give bail, he shall be released

on bail; and if a Magistrate taking

cognizance of such offence decides that a

warrant should be issued in the first

instance against that person, he shall

issue a bailable warrant in conformity

with the direction of the Court under subsection (1).

(4)Nothing in this section shall apply to

any case involving the arrest of any

person on accusation of having

committed an offence under section 65

and sub-section (2) of section 70 of the

Bharatiya Nyaya Sanhita, 2023.”

the Court;and

(iv) such other conditions as may be

imposed under sub-section (3) of Section

437, as if the bail were granted under

that section.

Explanation. The final order made on an

application for direction under subsection (1); shall not be construed as an

interlocutory order for the purpose of this

Code.

(3) Where the Court grants an interim

order under sub-section (1), it shall

forthwith cause a notice being not less

than seven days notice, together with a

copy of such order to be served on the

Public Prosecutor and the Superintendent

of Police, with a view to give the Public

Prosecutor a reasonable opportunity of

being heard when the application shall be

finally heard by the Court.

(4) On the date indicated in the interim

order under sub-section (2), the Court

shall hear Puplic Prosecutor and the

applicant and after due consideration of

their contentions, it may confirm, modify

or cancel the interim order.

(5) The High Court or the Court of

Session, as the case may be, shall finally

dispose of an application for grant of

anticipatory bail under sub-section (1),

within thirty days of the date of

application;

(6) Provisions of this section shall not be

applicable,-

(a) to the offences arising out of,-

(i) the Unlawful Activities (Prevention)

Act, 1967;

(ii) the Narcotic Drugs and Psychotropic

Substances Act, 1985;

(iii) the Official Secret Act, 1923;

(iv) the Uttar Pradesh Gangsters and

Anti-Social Activities (Prevention) Act,

1986.

(b) in the offences, in which death

sentence can be awarded.

(7) If an application under this section

has been made by any person to the High

Court, no application by the same person

shall be entertained by the Court of

Session.” [Vide U.P. Act No.4 of 2019, S.

2 (Received the assent of the President on

1-6-2019 and published in

the U.P. Gazette, Extra., Part I, Section

(Ka), dated 6.6.2019).]

29. It is a relevant fact that provision of anticipatory bail was omitted for

the State of U.P. by Act No.16 of 1976 and has thereafter been

reincorporated by means of U.P. Act No. 4 of 2019.

30. The aforesaid State amendment came into effect once it received the

assent of President of India but subsequently, the entire Cr.P.C. was

repealed with advent of BNSS 2023 with effect from Ist July, 2024.

31. At the very outset, difference in provisions of Section 438 as

applicable in the State of U.P. with that of Section 482 BNSS will require

consideration.

32. From a bare perusal thereof, it is evident that there is considerable

difference in the provisions of anticipatory bail as were applicable in State

of U.P. prior to the advent of BNSS and subsequent thereto. The primary

difference in both the provisions apart from the prohibitions indicated in

Section 438(6) Cr.P.C. is that the factors indicated for grant of

anticipatory bail under Section 438(1) Cr.P.C. are conspicuously absent

under Section 482 BNSS. The proviso to Section 438(1) Cr.P.C. is also

missing while provisions of Section 438(3) and (4) also do not find any

place under newly incorporated Section 482 BNSS.

33. It is therefore evident that substantial change has been made under

Section 482 BNSS pertaining to grant of anticipatory bail after the advent

of BNSS 2023.

34. With regard to aforesaid repeal of Cr.P.C. and incorporation of new

provision for anticipatory bail, learned Government Advocate has placed

specific reliance upon Sections 6, 6A, 8 and 24 of the General Clauses Act

which are as follows:-

“6. Effect of repeal.-

Where this Act, or any 3

[Central Act] or Regulation made after the commencement of

this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a

different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes

effect;or

(b)affect the previous operation of any enactment so repealed or anything duly done

or suffered thereunder; or

(c)affect any right, privilege, obligation or liability acquired, accrued or incurred

under any enactment so repealed; or

(d)affect any penalty, forfeiture or punishment incurred in respect of any offence

committed against any enactment so repealed; or

(e)affect any investigation, legal proceeding or remedy in respect of any such right,

privilege, mobligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued

or enforced, and any such penalty, forfeiture or punishment may be imposed as if the

repealing Act or Regulation had not been passed.

6A Repeal of Act making textual amendment in Act or Regulation.- Where any

Central Act or Regulation made after the commencement of this Act repeals any

enactment by which the text of any Central Act or Regulation was amended by the

express omission, insertion or substitution of any matter, then, unless a different

intention appears, the repeal shall not affect the continuance of any such amendment

made by the enactment so repealed and in operation at the time of such repeal.

8. Construction of references to repealed enactments.-

2

[(1)] Where this Act, or any 2

[Central Act] or Regulation made after the

commencement of this Act, repeals and re-enacts, with or without modification, any

provision of a former enactment, then references in any other enactment or in any

instrument to the provision so repealed shall, unless a different intention appears, be

construed as references to the provision so re-enacted.

3

[(2)] 4

[Where before the fifteenth day of August, 1947, any Act of Parliament of the

United Kingdom repealed and re-enacted], with or without modification, any

provision of a former enactment, then references in any [Central Act] or in any

Regulation or instrument to the provision so repealed shall, unless a different

intention appears, be construed as references to the provision so re-enacted.]

24. Continuation of orders, etc., issued under enactments repealed and re-enacted.-

Where any 3

[Central Act] or Regulation, is, after the commencement of this Act,

repealed and re-enacted with or without modification, then, unless it is otherwise

expressly provided any 4

[appointment, notification] order, scheme, rule, form or byelaw 4

[made or] issued under the repealed Act or Regulation, shall, so far as it is not

inconsistent with the provisions re-enacted, continue in force, and be deemed to have been  [made or] issued under the provisions so re-enacted, unless and until it is superseded by any [appointment notification,] order, scheme, rule, form or bye-law,

[made or] issued under the provisions so re-enacted 5

[and when any 3

[Central Act]

or Regulation, which, by a notification under section 5 or 5A of the 6

Scheduled

Districts Act, 1874, (14 of 1874) or any like law, has been extended to any local area,

has, by a subsequent notification, been withdrawn from the re-extended to such area

or any part thereof, the provisions of such Act or Regulation shall be deemed to have

been repealed and re-enacted in such area or part within the meaning of this section].

35. A perusal of the aforesaid sections makes it evident that apart from

Section 6 of the General Clauses Act, none of the other sections would be

applicable in such circumstances as the present one. Section 6-A of the

Act would be applicable only in case where any Central Act or Regulation

repeals an enactment by which the text of any earlier Central Act or

Regulation was amended. It is therefore evident that Section 6-A would

be applicable only in those cases where earlier Central Act is kept intact

and the subsequent Central Act or Regulation amends only the

amendment made in the earlier Central Act. The aforesaid section would

have been applicable only in case the State enactment was repealed while

keeping provisions of Cr.P.C. as enacted by Parliament intact.

36. Similarly Section 8 of the General Clauses Act which appear to be

pari materia with Section 531(2)(b) BNSS would be applicable only for

the purposes of references to repealed enactments and does not by any

stretch of imagination be applicable for the purposes of saving the State

enactment as in the present case.

37. Section 24 of the General Clauses Act by its very nature also would

not be applicable since it pertains only to those aspects where any

appointment, notification, order, scheme, rule, form or bye law made or

issued under repealed Act is not inconsistent with the provisions of

enactment and would continue in force. The aforesaid Section is therefore

inapplicable in cases of re-enactment of statute which may be inconsistent

with the earlier enactment.

38. In the present case as has been observed herein above, there is

considerable difference in provisions of anticipatory bail as were amended

by the U.P. Act No.4 of 2019 and the re-enacted provisions of

anticipatory bail under Section 482 BNSS.

39. In fact in such circumstances as the present one, it is Section 6 of

the General Clauses Act which would have applicability particularly in

case different intention has been made apparent in the re-enacted

provisions after repeal of the earlier provision. The intention therefore to

continue the earlier provisions even after repeal have to be specifically

indicated. Section 6(b) of the General Clauses Act clearly pertains to

repeal not affecting the previous operation of any enactment so repealed

or anything duly done or suffered thereunder.

40. The natural corollary of the said provision would be that for continued

operation of any enactment or any provision of such enactment so

repealed would require specific intention in the repealing enactment.

Section 6(d) and (e) of General Clauses Act also indicates that for a legal

proceeding or remedy to continue even after repeal, a different intention

in the subsequent enactment is required. It is also relevant that under

Section 6(e) of the General Clauses Act, only the investigation, legal

proceeding or remedy in respect of any such right, privilege, obligation,

liability, penalty, forfeiture or punishment is indicated. It naturally follows

that any embargo upon any legal proceeding or remedy imposed by the

Amending Act would require specific intention indicated in the

subsequent enactment for its continuation. The said aspect has been dealt

with by Supreme Court in the case of State of U.P. versus Hirendra Pal

Singh (2011) 5 SCC 305 in the following manner:-

” 22. It is a settled legal proposition that whenever an Act is repealed, it must be

considered as if it had never existed. The object of repeal is to obliterate the Act from

the statutory books, except for certain purposes as provided under Section 6 of the

General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance.

Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out

wholly i.e. pro tanto repeal (vide Dagi Ram Pindi Lall v. Trilok Chand Jain [(1992) 2

SCC 13 : AIR 1992 SC 990] ; Gajraj Singh v. STAT [(1997) 1 SCC 650 : AIR 1997 SC

412] ; Property Owners’ Assn. v. State of Maharashtra [(2001) 4 SCC 455 : AIR 2001

SC 1668] and Mohan Raj v. Dimbeswari Saikia [(2007) 15 SCC 115 : (2010) 2 SCC

(Cri) 782 : AIR 2007 SC 232] ).”

41. The aspect of a specific intention expressed in the subsequent

enactment to keep alive provisions of repealed enactment in terms of

section 6 has been dealt with by Supreme Court in the case of State of

Punjab versus Mohar Singh (1954) 2 SCC 483 in following manner:-

“12. The High Court, in support of the view that it took, placed great reliance upon

certain observations of Sulaiman, C.J. in Danmal Parshotam Dass v. Babu Ram

Chhote Lal [Danmal Parshotam Dass v. Babu Ram Chhote Lal, 1935 SCC OnLine All

328 : AIR 1936 All 3] . The question raised in that case was whether a suit by an

unregistered firm against a third party, after coming into force of Section 69 of the

Partnership Act, would be barred by that section in spite of the saving clause

contained in Section 74(b) of the Act. The Chief Justice felt some doubts on the point

and was inclined to hold that Section 74(b) would operate to save the suit although

the right sought to be enforced by it had accrued prior to the commencement of the

Act; but eventually he agreed with his colleague and held that Section 69 would bar

the suit. While discussing the provision of Section 74(2) of the Partnership Act, in

course of his judgment, the learned Chief Justice referred by way of analogy to

Section 6(e) of the General Clauses Act and observed as follows (at p. 7):

“It seems that Section 6(e) would apply to those cases only where a previous law has

been simply repealed and there is no fresh legislation to take its place. Where an old

law has been merely repealed, then the repeal would not affect any previous right

acquired nor would it even affect a suit instituted subsequently in respect of a right,

previously so acquired. But where there is a new law which not only repeals the old

law, but is substituted in place of the old law, Section 6(e) of the General Clauses Act

is not applicable, and we would have to fall back on the provisions of the new Act

itself.”

These observations could not undoubtedly rank higher than mere “obiter dictum” for

they were not at all necessary for purposes of the case, though undoubtedly they are

entitled to great respect. In agreement with this dictum of Sulaiman, C.J., the High

Court of Punjab, in its judgment in the present case, has observed that where there is

a simple repeal and the legislature has either not given its thought to the matter of

prosecuting old offenders, or a provision dealing with that question has been

inadvertently omitted, Section 6 of the General Clauses Act will undoubtedly be

attracted.

13. But no such inadvertence can be presumed where there has been a fresh

legislation on the subject and if the new Act does not deal with the matter, it may be

presumed that the legislature did not deem it fit to keep alive the liability incurred

under the old Act. In our opinion the approach of the High Court to the question is not

quite correct. Whenever there is a repeal of an enactment, the consequences laid down

in Section 6 of the General Clauses Act will follow unless, as the section itself says, a

different intention appears. In the case of a simple repeal there is scarcely any room

for expression of a contrary opinion. But when the repeal is followed by fresh

legislation on the same subject we would undoubtedly have to look to the provisions of

the new Act, but only for the purpose of determining whether they indicate a different

intention.”

42. The aforesaid judgment would therefore be a proposition of law to the

effect that in case of repeal of an enactment, consequences laid down in

Section 6 of the General Clauses Act will follow, unless a different

intention appears. In case the new legislation manifests an intention

incompatible with or contrary to the provisions of earlier section, such

incompatibility would have to be ascertained in order to indicate the

saving clause. The said judgment has thereafter been followed with

approval in the case of Manphul Singh Sharma versus Ahmadi Begum,

(1994) 5 SCC 456.

43. In the case of Gajraj Singh and others versus State Transport

Appellate Tribunal and Others (1997) 1 SCC 650, Hon’ble Supreme

Court has also reiterated the said aspect with regard to Section 6 of

General Clauses Act in the following manner:-

“24. When there is a repeal and simultaneous re-enactment, Section 6 of the GC Act

would apply to such a case unless contrary intention can be gathered from the

repealing Act. Section 6 would be applicable in such cases unless the new legislation

manifests intention inconsistent with or contrary to the application of the section.

Such incompatibility would have to be ascertained from all relevant provisions of the

new Act. Therefore, when the repeal is followed by a fresh legislation on the same

subject, the Court would undoubtedly have to look to the provisions of the new Act

only for the purpose of determining whether the new Act indicates different intention.

The object of repeal and re-enactment is to obliterate the Repealed Act and to get rid

of certain obsolete matters.

xxx xxxx xxxx

31. In Cardinal Rules of Legal Interpretation (3rd Edn.) by Randall, A.E., 1924, it is

stated at pp. 531-32 thus:

“Their lordships … conceive that, in dealing with a statute which professes merely to

repeal a former statute of limited operation, and to re-enact its provisions in an

amended form, they are not necessarily to presume an intention to extend the

operation of those provisions to classes of persons not previously subject to them,

unless the contrary is shown; but that they are to determine on a fair construction of

the whole statute, considered with reference to the surrounding circumstances,

whether such an intention existed. Brown v. McLachlan [(1872) LR 4 PC 543 : 42 LJ

PC 18] PC at p. 550 : LJPC at p. 23, Sir W. Colville, delivering the judgment of the

Judicial Committee.

‘Where you have a repeal, and you have also a saving clause, you have to consider

whether the substituted enactment contains anything incompatible with the previously

existing enactment. The question is, Aye or No, is there incompatibility between the

two? And in those cases the Judges, in holding that there was a saving clause large

enough to annul the repeal, said that you must see whether the true effect was to

substitute something incompatible with the enactment in the Act repealed; and that if

you found something in the repealing Act incompatible with the general enactments in

the repealed Act, then you must treat the jurisdiction under the repealed Act as pro

tanto wiped out. That is settled by the cases of Busfield, In re [(1886) 32 Ch D 123 :

55 LJ Ch 467] and Hume v. Somerton [(1890) 25 QBD 239 : 59 LJQB 420] .’ R., In

re [(1906) 1 Ch 730 : 75 LJ Ch 421] , Ch at p. 736 : LJ Ch at p. 423, Collins, M.R.”

44. The aspect of applicability of Section 6 of the General Clauses Act is

also required to be examined with regard to applicability of proviso to

Article 254(2) of the Constitution of India which is as follows:-

 “254. Inconsistency between laws made by Parliament and laws made by the

Legislatures of States-

(1) If any provision of a law made by the Legislature of a State is repugnant to any

provision of a law made by Parliament which Parliament is competent to enact, or to

any provision of an existing law with respect to one of the matters enumerated in the

Concurrent List, then, subject to the provisions of clause (2), the law made by

Parliament, whether passed before or after the law made by the Legislature of such

State, or, as the case may be, the existing law, shall prevail and the law made by the

Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State [***] with respect to one of the

matters enumerated in the Concurrent List contains any provision repugnant to the

provisions of an earlier law made by Parliament or an existing law with respect to

that matter, then, the law so made by the Legislature of such State shall, if it has been

reserved for the consideration of the President and has received his assent, prevail in

that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any

time any law with respect to the same matter including a law adding to, amending,

varying or repealing the law so made by the Legislature of the State.”

45. The said proviso to Article 254(2) is also indicative of the fact 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. The aforesaid aspect has been dealt by

Supreme Court in the case of Zaver Bhai Amaidas versus State of

Bombay (1954) 2 SCC 345 in the following manner:-

“15. Bavdekar, J., who came to the contrary conclusion observed, and quite correctly,

that to establish repugnancy under Section 107(2) of the Government of India Act, it

was not necessary that one legislation should say “do” what the other legislation says

“don’t”, and that repugnancy might result when both the legislations covered the

same field. But he took the view that the question of enhanced penalty under Act 36 of

1947 was a matter different from that of punishment under the Essential Supplies

(Temporary Powers) Act, and as there was legislation in respect of enhanced penalty

only when the offence was possession of foodstuffs, in excess of twice the prescribed

quantity, the subject-matter of Act 36 of 1947 remained untouched by Act 52 of 1950

in respect of other matters. In other words, he considered that the question of

enhanced punishment under Act 36 of 1947 was a matter different from that of mere

punishment under the Essential Supplies (Temporary Powers) Act and its

amendments; and in this, with respect, he fell into an error. The question of

punishment for contravention of orders under the Essential Supplies (Temporary

Powers) Act both under Act 36 of 1947 and under Act 52 of 1950 constitutes a single

subject-matter and cannot be split up in the manner suggested by the learned Judge.

On this principle rests the rule of construction relating to statutes that:

“when the punishment or penalty is altered in degree but not in kind, the later

provision would be considered as superseding the earlier one”.

(Maxwell on Interpretation of Statutes, 10th Edn., pp. 187 and 188). “It is a wellsettled rule of construction”, observed Goddard, J.

in Smith v. Benabo [Smith v. Benabo, (1937) 1 KB 518 (DC)] .

“that if a later statute again describes an offence created by a previous one, and

imposes a different punishment, or varies the procedure, the earlier statute is repealed

by the later statute : see Michell v. Brown [Michell v. Brown, (1858) 1 El & El 267 at

p. 274 : 120 ER 909] , per Lord Campbell”. (KB p. 525)

16. It is true, as already pointed out, that on a question under Article 254(1) whether

an Act of Parliament prevails against a law of the State, no question of repeal arises;

but the principle on which the rule of implied repeal rests, namely, that if the subjectmatter of the later legislation is identical with that of the earlier, so that they cannot

both stand together, then the earlier is repealed by the later enactment, will be equally

applicable to a question under Article 254(2) whether the further legislation by

Parliament is in respect of the same matter as that of the State law. We must

accordingly hold that Section 2 of Bombay Act 36 of 1947 cannot prevail as against

Section 7 of Essential Supplies (Temporary Powers) Act 24 of 1946 as amended by Act

52 of 1950.”

46. The same aspect has recently again been considered in the case of

Naeem Bano alias Gaindo versus Mohd Rahees & another, special

leave petition (c) No. 16460 of 2023 in the following manner:-

” 9.1 Further, in Gauri Shankar Gaur vs. State of UP, [1993] Supp.1 SCR 667, this

Court held as follows:

“An exception has been engrafted to this rule by Cl.2 thereof, namely, if the state law

has been reserved for consideration and the President gives assent to a State Law, it

will prevail, notwithstanding it repugnance to a earlier law made by the Union,

though both laws are dealing with concurrent subject occupying the same field but

operate in a collision course. The assent obtained from the President of the State Act

which is inconsistent with the Union Law prevails in that State and overrides the

provisions of the Union Law in its application to that State only. However, if the

Parliament, in exercising its power under proviso to Art. 254(2) makes a law adding,

amending or repealing the union law, predominance secured by the State law by the

assent of the President is taken away and the repugnant State law though it became

valid by virtue of President’s assent, would be void either directly of by its repugnance

with respect to the same matter.” [emphasis supplied]

9.2 The judgment of this Court in Innoventive Industries Ltd. vs. ICICI Bank, [2017] 8 SCR 33 examined the case law on 9 Article 254 and summarised the position of law.

As regards the case at hand, the following points are relevant:

50. The case law referred to above, therefore, yields the following propositions:

vi) Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into

direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts.

XXX

viii) A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject matter. This need not be in the form of a direct conflict,where one says “do” and the other says “don’t”. Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy.

ix) Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State’s statute which is found to be repugnant is to be declared void.

x) The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the legislature of the State, by virtue of the operation of Article 254(2) proviso.” (underlining by us)”

47. Upon applicability of aforesaid judgments, 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.

48. Upon applicability of aforesaid judgments, it is thus evident as has been observed herein above that there is no specific intention indicated in the subsequent enactment of BNSS 2023 to continue with the State amendment made by means of Act No.4 of 2019 and even in terms of proviso to Article 254(2) of the Constitution of Idia, 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.

49. From perusal of differences in provisions of anticipatory bailincorporated vide Act No. 4 of 2019 and Section 482 BNSS 2023, it is evident that Parliament made a conscious decision to do away with the prohibitions indicated in Section 438(6) Cr.P.C. particularly since it would be deemed that Parliament was aware of provisions incorporated vide Act No.4 of 2019 by virtue of deeming fiction and therefore the re-enacted provisions can be said to have been deliberately obliterated by Parliamentbwhile enacting Section 482 BNSS 2023.

50. Another aspect pertaining to same is the concept that in case of any

ambiguity in the construction of penal statute, favourable interpretation

towards protecting the right of accused are required. The said aspect has

been dealt with by Hon’ble Supreme Court in the case of M. Ravindran

versus Directorate of Revenue Intelligence (2021) 2 SCC 485 in the

following manner:-

” 17.9. Additionally, it is well-settled that in case of any ambiguity in the construction

of a penal statute, the courts must favour the interpretation which leans towards

protecting the rights of the accused, given the ubiquitous power disparity between the

individual accused and the State machinery. This is applicable not only in the case of

substantive penal statutes but also in the case of procedures providing for the

curtailment of the liberty of the accused.”

51. The aforesaid aspect has also been considered in the case of Tolaram

Relumal and another versus State of Bombay (1954) 1 SCC 961 in the

following manner:-

” 8. The question that needs our determination in such a situation is whether Section

18(1) makes punishable receipt of money at a moment of time when the lease had not

come into existence, and when there was a possibility that the contemplated lease

might never come into existence. It may be here observed that the provisions of

Section 18(1) are penal in nature and it is a well-settled rule of construction of penal

statutes that if two possible and reasonable constructions can be put upon a penal

provision, the court must lean towards that construction which exempts the subject

from penalty rather than the one which imposes penalty. It is not competent for the

court to stretch the meaning of an expression used by the legislature in order to carry

out the intention of the legislature. As pointed out by Lord Macmillan in London &

North Eastern Railway Co. v. Berriman [London & North Eastern Railway

Co. v. Berriman, 1946 AC 278 at p. 295 (HL)] : (AC p. 295)

“… Where penalties for infringement are imposed it is not legitimate to stretch the

language of a rule, however, beneficent its intention, beyond the fair and ordinary

meaning of its language.”

52. In view of discussion made herein above, it is quite evident that

provisions of Section 482 BNSS 2023 would prevail over amendment

made by Act No.4 of 2019.

53. The question No.2 accordingly is also answered negatively against the

State.

54. In a recent judgment in the case of Raman Sahni versus State of U.P., Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 1710 of 2024 Coordinate Bench of this Court has also held that in terms of Section 482 BNSS, anticipatory bail would be maintainable in cases where NDPS Act is imputed.

55. In view thereof, it is held that an anticipatory bail application would be maintainable in cases where sections of the NDPS Act have been made applicable in an F.I.R.

56. On merits of issue, it is evident that as per contents of F.I.R./recovery

certificate, the incident is said to have taken place on 8th May, 2024 when

a police team acting on the basis of information supplied apprehended a

pickup van bearing registration No. U.P. 32 JN 9524 with the occupant

namely Raj Kumar alias Sonu who is said to have disclosed the name of

applicant as owner of the vehicle. Recovery of cartons of mixed cough

syrup with Codeine is said to have been made. It is also stated that the

applicant upon being contacted indicated that the aforesaid products

belonged to one Amandeep son of Gurmeet Singh and were being

transported by applicant’s vehicle.

57. It is submitted that applicant has been falsely implicated in allegations

levelled against him which would be evident from the fact that the

applicant has neither been apprehended from the spot nor is there any

recovery from him. It is submitted that vehicle in fact belonged to his

mother Smt. Kamla Devi and was requisitioned by the applicant for

purposes of transportation of bottles of cough syrup which has been

seized. It is submitted that aforesaid aspects are evident from the F.I.R.

itself. He has also adverted to Rule 52-A of the Rules framed under the

Act of 1985 to submit that Methyl Morphine commonly known as

Codeine alongwith dilution and compounded with one or more

ingredients is required not to exceed 100 Mg. of the drug per unit. It is

therefore submitted that since as yet F.S.L. report is not made available,

there can not be any assumption that the volume of Codeine seized is

more than the commercial or prescribed limit.

58. Learned A.G.A. has opposed bail application but admits that F.S.L.

report has not yet been obtained. It is also submitted that charge sheet as

yet has not been filed.

59. Upon consideration of submissions advanced by learned counsel for

parties and perusal of material on record, prima facie subject to evidence

led in trial, it appears that earlier charge sheet had been filed against the

applicant on sections excluding Section 22(c) of the NDPS Act 1985

which has been imposed much subsequently. The aforesaid aspect would

require to be considered by trial court alongwith the aspect as to whether

the volume of Codeine seized is more than the prescribed limit in terms of

rules framed under the Act of 1985, which at present may not be

ascertainable due to lack of F.S.L report.

60. Considering aforesaid circumstances, the aspects of Section 37 of

NDPS Act are found in favour of the applicant.

61. Thus in view of law laid down by Hon’ble Supreme Court in Sushila Aggarwal Vs. State (NCT of Delhi)-(2020) 5 SCC 1, it would be appropriate to grant anticipatory bail to applicant under Section 438 Cr.P.C./482 BNSS.

62. In view of the above, it is provided that in the event of arrest, the

applicant- Sudhir @ Sudhir Kumar Chaurasia shall be released on

anticipatory bail in the aforesaid Case Crime number on his furnishing a

personal bond with two sureties each in the like amount to the satisfaction

of the arresting officer/investigating officer/S.H.O. concerned with the

following conditions:-

(i) that the applicant shall make himself available for interrogation by a

police officer as and when required;

(ii) that the applicant shall not, directly or indirectly make any

inducement, threat or promise to any person acquainted with the facts of

the case so as to dissuade him from disclosing such facts to the court or to

any police officer or tamper with the evidence;

(iii) that the applicant shall not leave India without the previous

permission of the court;

(iv) that in case charge-sheet is submitted the applicant shall not tamper

with the evidence during the trial;

(v) that the applicant shall not pressurize/ intimidate the prosecution

witness;

(vi) that the applicant shall appear before the trial court on each date fixed

unless personal presence is exempted;

(vii) that in case of breach of any of the above conditions, benefit of this

order would not be available to applicant.

The application stands allowed.

Order Date :-30.5.2025