BNSS Section 105 Videography Compliance Mandatory for NDPS Bail; Mobile Phone Recording Insufficient : Allahabad HC

The Allahabad High Court recently granted bail to an accused charged under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), highlighting procedural lapses in the investigation, particularly the failure to comply with Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The judgment underscores the importance of strict adherence to procedural safeguards in NDPS cases, even where commercial quantities of contraband are involved.

Background & Facts

The Dispute

The applicant, Shyam Shivhare, was arrested in Case Crime No. 748 of 2025 under Sections 8/20 and 29/60 of the NDPS Act, registered at Police Station Kotwali Orai, District Jalaun. The case involved the alleged recovery of 81 kg of ganja from the joint possession of the applicant and a co-accused, Ankur @ Pawan Shivhare, who were traveling in a car. A third person allegedly fled the scene.

Key Facts

• Date of Arrest: The applicant has been in custody since 30.12.2025.
• Recovery Details: The contraband was recovered from the diggy (boot) of the car, not from the conscious possession of the applicant.
• Procedural Lapses: The videography of the recovery was conducted on a mobile phone instead of the e-sakshya app, violating Section 105 of the BNSS.
• Co-Accused Bail: The co-accused, Ankur @ Pawan Shivhare, was granted bail by the same court on 03.04.2026 in Criminal Misc. Bail Application No. 2004 of 2026.
• Quantity: The recovered ganja was of commercial quantity, invoking stringent provisions of the NDPS Act.

Procedural History

• 30.12.2025: Applicant arrested and remanded to custody.
• 2026: Bail application filed under Section 483 of the BNSS.
• 03.04.2026: Co-accused granted bail.
• 07.05.2026: Present bail application allowed by the High Court.

Relief Sought

The applicant sought bail on the grounds of:

• False implication due to ulterior motives.
• Parity with the co-accused who was granted bail.
• Non-compliance with Section 105 of the BNSS regarding videography.
• Prolonged incarceration without likelihood of early trial conclusion.

The Legal Issue

The primary legal question was whether bail could be granted under the NDPS Act despite the recovery of a commercial quantity of contraband, given:

1. The non-compliance with procedural safeguards under Section 105 of the BNSS.
2. The parity of the applicant's role with that of the co-accused who had already been granted bail.
3. The absence of conscious possession of the contraband by the applicant.

Arguments Presented

For the Applicant

• The applicant was falsely implicated due to ulterior motives.
• The co-accused was granted bail on 03.04.2026, and the applicant's role was indistinguishable from the co-accused.
• The recovery was not from conscious possession but from the diggy of the car.
• Section 105 of the BNSS was violated as videography was conducted on a mobile phone instead of the e-sakshya app.
• The applicant had been languishing in jail since 30.12.2025 with no likelihood of early trial conclusion.

For the Respondent

• The recovery was from the diggy of the car, where the applicant and co-accused were seated, establishing joint possession.
• The contraband was of commercial quantity, invoking stringent provisions of the NDPS Act.
• The mandatory provisions of Sections 50 and 52-A of the NDPS Act and Section 105 of the BNSS were complied with.

The Court's Analysis

The Court relied on the totality of facts and the evidence reflected from the record, while considering the provisions of Section 37 of the NDPS Act and the precedent set in Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798. The Court observed:

"Upon considering the totality of facts, nature and the evidence reflected from record and also taking into consideration the provision of Section 37 of N.D.P.S. Act and the law laid down in the case of Union of India vs Shiv Shanker Kesari (2007) 7 SCC 798 without expressing any opinion on merits of the case, I find it to be a fit case for bail."

The Court emphasized the following key points:

1. Parity with Co-Accused: The co-accused had already been granted bail, and the applicant's role was not distinguishable from the co-accused.
2. Procedural Non-Compliance: The videography of the recovery was not conducted as per Section 105 of the BNSS, which mandates the use of the e-sakshya app.
3. Conscious Possession: The contraband was recovered from the diggy of the car, not from the conscious possession of the applicant.
4. Judicial Precedent: The Court relied on Union of India v. Shiv Shanker Kesari to guide its decision, though it refrained from expressing any opinion on the merits of the case.

The Verdict

The Allahabad High Court allowed the bail application and directed the release of the applicant on the following conditions:

• The applicant shall furnish a personal bond of Rs. 50,000 with two sureties each in the like amount.
• The applicant shall not tamper with evidence or influence witnesses.
• The applicant shall remain present before the trial court on dates fixed for:
  • Opening of the case.
  • Framing of charge.
  • Recording of statement under Section 351 of the BNSS.
• The applicant shall not seek adjournments on dates fixed for evidence when witnesses are present.
• The applicant shall remain present before the trial court on each date fixed, either personally or through counsel.
• Breach of any condition shall result in cancellation of bail.

The Court clarified that its order was limited to the determination of the bail application and would not influence the merits of the case.

What This Means For Similar Cases

Procedural Compliance Is Non-Negotiable

• Strict adherence to procedural safeguards under Section 105 of the BNSS is critical. Courts may grant bail where videography requirements are not met, even in cases involving commercial quantities of contraband.
• Practitioners should scrutinize investigation records for compliance with BNSS provisions, particularly in NDPS cases where procedural lapses can tilt the balance in favor of the accused.

Parity with Co-Accused Can Be a Decisive Factor

• Where co-accused have been granted bail, courts may extend the same relief to other accused if their roles are indistinguishable. This principle can be leveraged in bail applications to argue for parity in treatment.
• Defense counsel should highlight prior bail orders for co-accused and emphasize the lack of distinguishing factors in the applicant's role.

Conscious Possession Remains a Key Consideration

• The absence of conscious possession can weaken the prosecution's case. In this judgment, the recovery from the diggy of the car rather than the personal possession of the applicant played a pivotal role in granting bail.
• Practitioners should analyze the recovery circumstances and argue that the contraband was not in the conscious possession of the accused, especially in cases involving joint possession or shared vehicles.

Trial Delays Can Influence Bail Decisions

• Prolonged incarceration without likelihood of early trial conclusion can be a compelling ground for bail. Courts may consider the pendency of cases and the unlikelihood of early trial completion as factors favoring bail.
• Defense counsel should highlight delays in trial proceedings and the prejudice caused to the accused due to prolonged detention.