Special Court's Failure to Provide Pre-Cognizance Hearing to Accused Leads to Set-Aside of Proceedings in NDPS Case
In a landmark decision, the Allahabad High Court at Lucknow, presided over by Justice Brij Raj Singh, has set aside a cognizance order issued by a Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), due to non-compliance with the procedural mandates of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The judgment, delivered on May 19, 2026, underscores the necessity of affording an accused the opportunity of a hearing before cognizance of an offence is taken, as per Section 223(1) of the BNSS.
The case involved applicant Shatrughan Kumar, who challenged the cognizance order dated July 14, 2025, in Sessions Case No. 1078 of 2025, arguing that he was not given a chance to be heard before the Special Judge took cognizance of the complaint filed by the Narcotics Control Bureau. The counsel for the applicant, Syed Tamjeed Ahmad and colleagues, contended that the BNSS, effective from July 1, 2024, mandates such a hearing, and the failure to do so vitiated the entire proceeding.
Justice Singh referred to the similarity between Section 36A(1)(d) of the NDPS Act and Section 44(1)(b) of the Prevention of Money-Laundering Act, 2002, to emphasize that the provisions of Chapter XVI of BNSS, including Section 223, apply to complaints under special laws like the NDPS Act. The court highlighted previous judgments, including those from the Supreme Court and various High Courts, which have consistently held that the denial of a pre-cognizance hearing invalidates the cognizance order and subsequent proceedings.
The NCB, represented by counsel Sajeet Singh, argued that the applicant was remanded on the same day the cognizance was taken, and charges were framed subsequently on August 8, 2025. However, the court found this insufficient to override the statutory requirement of a hearing.
Quoting the important observations from cases such as Kushal Kumar Agarwal v. Enforcement Directorate and Tutu Ghosh v. Enforcement Directorate, the judgment reaffirmed the necessity of compliance with procedural safeguards to ensure justice and prevent prejudice against the accused.
The court's decision mandates that Shatrughan Kumar be given a chance to present objections before the Special Judge, who is directed to reconsider the cognizance in compliance with the BNSS provisions. This ruling not only reinforces the procedural rights of the accused in criminal proceedings but also sets a precedent for similar cases under special laws requiring stringent adherence to statutory mandates.
Bottom line:-
Compliance with the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is mandatory. Denial of an opportunity of hearing to the accused before taking cognizance vitiates the order of cognizance and subsequent proceedings.
Statutory provision(s):
- Bharatiya Nagarik Suraksha Sanhita, 2023 Section 223(1)
- Narcotic Drugs and Psychotropic Substances Act, 1985 Section 36A(1)(d)
- Prevention of Money-Laundering Act, 2002 Section 44(1)(b)
Shatrughan Kumar v. Narcotics Control Bureau, (Allahabad)(Lucknow) : Law Finder Doc id # 2902656
