S. 223 BNSS | Pre-Cognizance Hearing Of Accused Mandatory In Post-BNSS NDPS Complaints: Allahabad High Court

A bench of Justice Brij Raj Singh ruled thus while relying on the first proviso to Section 223(1) BNSS, which mandates granting the accused a prior hearing before taking cognizance of an offence on a 'complaint'.

Accordingly, the Court set aside a cognizance-taking order of the Special Judge, NDPS Act, Lucknow, for failing to hear the accused at the pre-cognizance stage.

Before the High Court, the counsel for the accused argued that, after the BNSS came into force on July 1, 2024, it became mandatory for a Court to hear the accused before taking cognizance of an offence upon a complaint, as per Section 223 of the Act.

In the present case, the Narcotics Control Bureau (NCB) instituted a complaint on July 14, 2025, i.e., when the provisions of Section 223 of BNSS were in force.

Consequently, it was submitted that the Special Judge was under a statutory obligation to adhere to the mandate contained in the first proviso to Section 223 of BNSS before taking cognisance.

The counsel for the accused further highlighted that Section 36A(1)(d) of the NDPS Act, which allows a Special Court to take cognizance upon a complaint made by an authorized officer without the accused being committed to it for trial, is strictly at par with Section 44(1)(b) of the Prevention of Money-Laundering Act, 2002 (PMLA).

On this issue, the counsel for the accused relied upon Supreme Court's decision in Kushal Kumar Agarwal v. Enforcement Directorate 2025 LiveLaw (SC) 642 wherein it was clarified that the provisions of Chapter XVI of the BNSS, containing Sections 223 to 226, apply to complaints filed under Section 44 of the PMLA after July 1, 2024.

Opposing the plea, the counsel for the NCB argued that the accused was remanded on the very day the cognizance order was passed, and the Special Judge had explicitly recorded: "सुना तथा परिवाद के साथ संलग्न समस्त प्रपत्रों का अवलोकन किया" (Heard, and perused all the documents annexed with the complaint).

It was further contended that charges were framed on August 8, 2025, and since the applicant did not challenge the cognizance order prior to the framing of charges despite having the opportunity, it could not be construed that he was denied a hearing.

Rejecting the NCB's arguments, Justice Brij Raj Singh noted that the applicant's case was squarely covered by judgments of the Supreme Court and High Courts, for the reason that Section 36A(1)(d) of the NDPS Act is pari materia with Section 44(1)(b) of the PMLA.

The Court referred to not only the Supreme Court's judgment in in Kushal Kumar, but also the Patna High Court judgment in Pushpraj Bajaj v. Union of India 2025 and Calcutta High Court in Tutu Ghosh v. Enforcement Directorate 2025 LiveLaw (Cal) 174.

The Court clarified that the applicant was indeed not given an opportunity of hearing before taking cognizance.

“The applicant could have been afforded an opportunity of hearing by calling objection and thereafter, order could have been passed in a speaking manner. But in the present case, the impugned order does not indicate any such compliance, therefore, it cannot be said that compliance of Section 223(1) of BNSS has been made,” the bench observed.

In view of this, the application was allowed and the impugned order was set aside qua the applicant.

Applicant was thus directed to appear along with objections, if any, before the Special Judge on May 29, who will pass an order immediately, in accordance with law, after affording opportunity of hearing to both the parties in terms of the proviso to Section 223(1) of BNSS.

Advocates Syed Tamjeed Ahmad, Adil Abbas and Saurabh Sharma appeared for the applicant

Advocate Sajeet Singh appeared for the opposite party