Gauhati High Court
Bail Appln./2207/2025 on 12 August, 2025
BA Case No, 2207/2025
BEFORE |
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
12.08.2025
1. Heard Mr. P. Kataki, learned counsel for the petitioner. Also
heard Mr. K.K. Das, learned Addl. Public Prosecutor, Assam,
appearing for the State respondent.
2. This application under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023 has been filed by the petitioner,
namely, Chinmoy Lahkar, who has been detained in judicial
custody since 10.06.2025 in connection with Tangla P.S. Case No.
59/2024 under Section 5 of the Explosive Substance Act, 1908 read
with Section 18 of the UA (P) Act, 1967.
3. The gist of accusation in this case is that on 14.09.2024, one
Hirak Jyoti Pegu, S.1. of Police has lodged an FIR before the officer-
in-charge of Tangla Police Station, inter alia, alleging that on receipt
of an information from a reliable source that 1 (one) hard core
criminal from Jorhat District, namely Jumon Borah have associated
with banned extremist out fit- ULFA (1) is taking shelter in Tangla
town with intention for arranging arms and explosive substance to
raise a new armed extremist group with active involvement and
support of one Sri Rajib Deka. Accordingly, a team was constituted
and moved towards Tangla Town. During search in the suspected
house four accused persons namely, Rajib Deka @ Tulsi @ Tuly, Sri
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jJuman Borah @ Alman Bora @ Kanchan Borah, Sri Pinku Sil @ Bibek
Asom and Jintu Baishya @ Jintu Asom were apprehended and a live
granade was recovered.
4 Mr. P. Kataki, the learned counsel for the petitioner submits
that the petitioner is no way involved in the alleged offence. He
submits that the petitioner was detained behind the bars in
connection with NIA Case No. 02/2019 since 18.05.2025, He also
submits that in the NIA Case No. 2/2019 he was granted bail on
09.06.2025 and after submission of ball bond he was released from
the Central Jail, Guwahati on 10.06.2025.
5. He further submits that on his release, police immediately
apprehended him when he came outside the Gauhati Central Jail
and took him to Basistha Police Station and thereafter he was taken
to Tangla Police Station and was arrested in connection with Tangla
P.S. Case No. 59/2024 and he was produced before the Special
judge, Udalguri.
6. The learned counsel for the petitioner further submits that in
the instant case, j.e. Tangla P.S. Case No. 59/2024, the manner in
which the petitioner was arrested was violative of the guidelines of
the Apex Court in the case of "Uday Chand Vs. Sheikh Mohd.
Abdullah, Chief Minister, Jammu and Kashmir", reported in "1983 (2)
SCC 417" as well as the observations made in the case of "Kamal
Dutta Vs. Union of India and Ors." reported in "2015 SCC Online, Gau,
759". He submits that it was the duty of the State investigating
agency to inform NIA Court that the petitioner was detained in
y
custody in connection with NIA Case No. 2/2019 regarding
involvement of the present petitioner, Tangla P.S. Case No. 59/2024
and by not doing so, his fundamental rights guaranteed to him by
Article 21 of the Constitution of India has been infringed.
7. He submits that in the case of "Uday Chand Vs. Sheikh Mohd.
Abdallah, Chief Minister. Jammu and Kastunir', (supra) as well in the
case of "Kamaf Dutta Vs. Union of India and Ors" (supra), both the
courts have treated the subsequent arrest of the petitioners in those
cases after their release on bail in connection with the earlier cases
pending against them, without informing the court, as illegal. He
submits that in the instant case also the proposition of law laid
down by the Apex Court in the case of Uday Chand Vs. Sheikh Mold.
Abdullah, Chief Minister, Jammu and Kashmir (Supra) has been
violated which has resulted into the violation of the fundamental
rights of the petitioner guaranteed under Article 21 of the
Constitution of India. He, therefore, submits that in case of the
violation of the fundamental rights of the petitioner and in view of
non-observation of the mandate of law laid down by the Apex Court
in the aforesaid case of Uday Chand Vs. Sheikh Mohd. Abduilah, Chief
Minister, Jammu and Kashmir, (supra), the embargo under Section
43D(5) of UA(P) Act, 1967 would not be applicable in the present
case,
8. The learned counsel for the petitioner has submitted that prior
to the date of his arrest in connection with Tangla P.S. Case No.
59/2024, the petitioner was detained in the Central Jail as a detenue
of NIA Case No, 2/2019. He submits that under trial prisoner facing
the case of NIA are not allowed to meet outsiders without the
permission of the NIA Court, therefore, the accusation levelled
against the petitioner in the forwarding report of the Investigating
Officer that the petitioner met Juman Bera, who is main accused in
the FIR, is not bellevable. He also submits that as the petitioner was
detained as under trial prisoner in jail, the question of using mobile
phone for contacting the extremists outside jail or to sms them Is
impossible. He, therefore, submits that there is no reasonable
ground to believe that the petitioner has committed offence under
Section 18 of the UP(A) Act, 1967. Hence, he submits that the
embargo under Section 43D(5) of the UA (P) Act, 1967 is not
applicable to him. He also submits that the accusations made
against the petitioner are vague and non-existent.
9. On the other hand, the learned Additional Public Prosecutor
has vehemently opposed to grant bail to the petitioner at this stage.
He submits that one of the offences involved in this case is under
Section 18 of the UA (P) Act, 1967 which falls under Chapter IV of
the UA(P) Act, 1967, therefore, he submits that embargo under
Section 43D(5) of said Act is applicable in this case. He submits that
there are sufficient incriminating materials available in the case diary
indicating to the complicity of the present petitioner in the alleged
offence. He submits that the petitioner has not been able to
overcome the embargo under Section 43D(5) of the said Act.
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10. The learned Additional Public Prosecutor has further submits
that the fact of the present case are distinguishable from the facts
relied upon by the learned counsel for the petitioner. He submits
that in both the cases Uday Chand Vs. Sheikh Mohd. Abdullah, Chief |
Minister, Jammu and Kashmir (supra) and Kamal Dutta Vs. Union of
india and Ors. (supra), the Investigating Agency involved were the
state Police. However, in the instant case, in NIA Case No. 2/2019,
the National Investigating Agency was involved, whereas, in the
subsequent case i.e. Tangla P.S. Case No. 2/2019, the investigating
agency was State police and nothing has been shown by the
petitioner to indicate that the National Investigating Agency was
aware about the existence of the Tangia P.S. Case No. 59/2024.
Therefore, he submits that the observations made in the Uday
Chand Vs. Sheikh Mohd. Abdullah, Chief Minister. Jammu and
Kashmir, (Supra) and Kamaf Dutta Vs. Union of India and Ors.
(Supra) are not applicable to the instant case. He also submits that
there is no violation of any of the fundamental rights of the
petitioner, therefore, the embargo of Section 43D(5) of the UA(P)
Act is applicable in the present case, hence, he submits that the
petitioner may not be allowed to go on bail.
11. I have considered the submissions made by the learned
counsel for both the parties and have gone through the case diary
of Tangla P.S. Case No. 59/2024, which was produced by the
learned Addi. Public Prosecutor.
12. The main contention of the learned counsel for the petitioner
for seeking bail is that while arresting the petitioner in Tangla P.S.
Case No. 59/2024, the mandate of the Apex Court in Uday Chand Vs.
Sheikh Mohd. Abdullah, Chief Minister, Jammu and Kashmir (supra)
was not complied with. It appears from the case diary that the FIR
in the Tangla P.S. Case No. 59/2024 was lodged on 14.09.2024 and
the name of the petitioner as having involved in the offence alleged
in the FIR was disclosed by the co-accused who was arrested in
connection with the aforesaid case. It is pertinent to note herein
that the petitioner was detained behind the bars, in the Central Jail,
Guwahati, during this period in connection with NIA Case No.
2/2019. However, there is nothing in the case diary to indicate that
the NIA Court was informed about the requirement of arrest of the
petitioner in connection with Tangla P.S. Case No, 59/2024.
13. In the case of Uday Chand Vs. Sheikh Mohd. Abdullah, Chief
Minister, Jammu and Kashmir, (supra), the Apex Court has
deprecated the practice of withholding the information from the
Court about the requirement to arrest the accused in other cases.
14. In the instant case, immediately after release of the petitioner,
on 10.06.2025, in NIA Case No, 2/2019, he was arrested in front of
the Central Jail, Guwahati. Had the police had informed the NIA
Court about the requirement of arresting the petitioner in Tangla
P.S, Case No. 59/2024 and had the said information being also
communicated to the petitioner, he could have sought for legal
remedy like anticipatory bail in Tangla P.S. Case No. 59/2024. By
depriving the petitioner of the said opportunity, in violation of the
mandate of the judgment of the Apex Court in the case of Uday
Chand Vs, Sheikh Mohd. Abdullah, Chief Minister. Jammu and
Kashmir, (supra) in the considered opinion of this Court has violated
the fundamental rights of the petitioner quaranteed to him under
Article 21 of the Constitution of India. In view of the aforesaid
infringement of the fundamental rights of the petitioner, the
embargo of Section 43D(5) of the Unlawful Activities (Prevention)
Act, 1967 would not be applicable against the petitioner.
15. In view of the aforesaid discussion, this Court is of opinion
that the petitioner is entitled to get bail in Tangla P.S. Case No.
59/2024,
16. Accordingly, the above named petitioner is allowed to go on
bail of Rs.50,000/- (Rupees Fifty Thousand) with two sureties of like
amount subject to the satisfaction of the learned Sessions Judge,
Udalguri with following conditions:-
(i) That the petitioner shall not directly or indirectly make any
inducement, threat or promise to any person who may be
acquainted with the facts of the case so as to dissuade such
person from disclosing such facts of the case before the
Investigating Officer;
{it} That the petitioner shall co-operate in the investigation; and
(fii) That the petitioner shall appear before the Investigating
Officer of Tangla P.S. Case No. 59/2024 in every week for next
6(six) weeks or till the investigation is completed, whichever is
earlier.
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17. Any violation of the aforesaid conditions would be a good ground
for cancellation of the bail granted to the petitioner.
18. This bail application is accordingly disposed of.
19. Send back the case diary.
JUDGE
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