Allahabad HC Sets Aside NDPS Cognizance Order for Skipping Mandatory Pre-Cognizance Hearing Under BNSS Section 223

The Lucknow Bench held that Section 36A(1)(d) of the NDPS Act is pari materia with Section 44(1)(b) of PMLA, making the pre-cognizance hearing proviso under BNSS Section 223 equally applicable to NCB complaints filed after 1 July 2024.

The Allahabad High Court's Lucknow Bench has set aside a cognizance order passed by the Special Judge, NDPS Act, Lucknow on 14 July 2025, finding that the accused was not afforded an opportunity of hearing before cognizance was taken on a complaint filed by the Narcotics Control Bureau. Justice Brij Raj Singh, sitting singly, allowed the application filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and directed the Special Judge to hear both parties afresh in terms of the first proviso to Section 223(1) of the BNSS. The judgment extends to NDPS proceedings the same pre-cognizance hearing requirement that the Supreme Court had already applied to complaints under the Prevention of Money-Laundering Act, 2002, treating the two statutory provisions as equivalent in structure and purpose.

The Dispute Before the Lucknow Bench

Shatrughan Kumar was remanded on 14 July 2025 in Sessions Case No. 1078 of 2025, arising out of NCB Case No. 01 of 2025. On the same date, the Special Judge took cognizance of offences under Sections 8(c), 20, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, on a complaint instituted by the NCB's Regional Office, Lucknow.

The applicant moved the High Court under Section 528 of the BNSS seeking two reliefs: setting aside the cognizance order, and quashing the entire proceedings. At the outset, counsel for the applicant confined the application to the first relief alone, abandoning the prayer for quashing of the entire case.

The central grievance was that the Special Judge took cognizance without giving the accused any opportunity of hearing, in breach of the first proviso to Section 223(1) of the BNSS, which came into force on 1 July 2024. Since the NCB's complaint was filed on 14 July 2025, the BNSS regime was squarely applicable.

The Statutory Provisions in Conflict

Section 223(1) of the BNSS requires a Magistrate taking cognizance on a complaint to examine the complainant and witnesses on oath. The first proviso to that sub-section adds a categorical bar: “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.” This proviso has no equivalent in Section 200 of the Code of Criminal Procedure, 1973, which Section 223 replaces.

Section 36A(1)(d) of the NDPS Act permits a Special Court to take cognizance of an NDPS offence upon a police report or upon a complaint made by an authorised officer of the Central or State Government, without the accused being committed to it for trial. The NCB relied on this provision to argue that the complaint-based route under the NDPS Act operates independently of the BNSS cognizance framework.

The applicant drew a parallel with Section 44(1)(b) of the PMLA, which similarly allows a Special Court to take cognizance on a complaint by an authorised authority without committal. Counsel argued that Section 36A(1)(d) of the NDPS Act and Section 44(1)(b) of the PMLA are structurally identical, and that the Supreme Court's ruling on PMLA complaints must therefore apply with equal force to NDPS complaints.

How the Bench Reasoned

Justice Brij Raj Singh accepted the applicant's position in full. The court found that Section 36A(1)(d) of the NDPS Act is pari materia with Section 44(1)(b) of the PMLA. That equivalence was the pivot of the entire analysis.

The court drew on three precedents placed by the applicant. In Kushal Kumar Agarwal v. Enforcement Directorate, reported in 2025 SCC OnLine SC 1221, the Supreme Court held that the provisions of Chapter XVI of the BNSS, containing Sections 223 to 226, apply to a complaint under Section 44 of the PMLA. The Supreme Court had also noted that since the complaint in that case was filed after 1 July 2024, Section 223 of the BNSS governed it. The Allahabad High Court applied that ruling directly, given the structural equivalence between the two special-law provisions.

The Patna High Court's decision in Pushpraj Bajaj v. Union of India, 2025 SCC OnLine Pat 3148, was also considered. That court had held that Section 210 of the BNSS is not a stand-alone provision and must be read in conjunction with Section 223, rejecting the argument that non-compliance with the pre-cognizance hearing requirement was a mere irregularity.

The Calcutta High Court's judgment in Tutu Ghosh v. Enforcement Directorate, 2025 SCC OnLine Cal 5924, addressed several questions directly relevant to the present case. The Calcutta High Court held that violation of the first proviso to Section 223 of the BNSS vitiates the cognizance order and all subsequent proceedings. It further held that the absence of the words “including any complaint filed by a person authorised under Special Law” in Section 223 does not exclude the operation of the first proviso in respect of complaints under special laws. Critically, the Calcutta High Court also held that an accused need not demonstrate specific prejudice or miscarriage of justice: the denial of the right of prior hearing is itself the prejudice.

Justice Brij Raj Singh examined the impugned cognizance order itself. The Special Judge had recorded in Hindi that the complaint and all annexed documents had been perused and heard. The court read this as indicating that no opportunity of hearing was extended to the accused before cognizance was taken. The court observed that the applicant could have been called upon to file objections, and a speaking order could then have been passed, but neither step was taken. On that basis, the court concluded that compliance with Section 223(1) of the BNSS had not been made out.

The NCB's counsel had argued that charges were framed on 8 August 2025 and that the applicant had not challenged the cognizance order before that stage, though he had the opportunity to do so. The submission was that, after framing of charges, it could not be said that the applicant was denied a hearing. Justice Brij Raj Singh did not accept this reasoning. The statutory mandate operates at the pre-cognizance stage; subsequent participation in proceedings does not cure the original defect.

Outcome

The application was allowed. The cognizance order dated 14 July 2025 was set aside in so far as it relates to the applicant. The applicant was directed to appear before the Special Judge, NDPS Act, Lucknow on 29 May 2026, along with objections, if any. The Special Judge was directed to pass an order immediately thereafter, in accordance with law, after affording an opportunity of hearing to both parties in terms of the first proviso to Section 223(1) of the BNSS.