Gauhati High Court

Page No.# 1/14 vs The State Of Assam on 6 May, 2025

                                                                         Page No.# 1/14

GAHC010068022025




                                                                   2025:GAU-AS:5633

                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./1051/2025

            MD KHALILUR RAHMAN
            R/O- LOCH, P/S- BAIHATA CHARIALI, DISTRICT-KAMRUP, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. C K NATH, MR. AJAY SARMA,MR. S MUNIR,MR. Y S
MANNAN

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

06.05.2025

1. Heard Mr. Y.S. Mannan, the learned counsel for the petitioner. Also heard Mr. M.P. Goswami, the learned Additional Public Prosecutor appearing for the State of Assam.

2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Md. Khalilur Rahman, who has been detained behind the Page No.# 2/14

bars since 11.09.2023 (for more than 1 year and 7 months) in connection with NDPS Case No. 03/2024, arising out of North Guwahati P.S. Case No. 111/2023 under Section 21(c)/29 of the NDPS Act, 1985, pending before the Court of the learned District and Sessions Judge, Kamrup, at Amingaon.

3. The gist of accusation in this case is that on 11.09.2023, one Saddam Ansari, S.I. of Police of Rani police outpost had lodged an FIR before the Officer-In-charge of North Guwahati Police Station, inter-alia, alleging that on that day, at around 4:00 PM an information was received through reliable sources by the Additional S.P. (Headquarter),Kamrup that the present petitioner along with his associates, Inamul Ali and Abdul Ali would be carrying some contraband in Black colour Hyundai Creta vehicle bearing Registration No. AS01FE1589 belonging to the present petitioner. Accordingly, a naka-checking was set up at Amingaon, near Saraighat Bridge. At around 7:00 PM on that day a Thar vehicle bearing Registration No. AS01FM7800 was found coming from Guwahati side and when the said vehicle was tried to be stopped, the occupants of the said vehicle made attempt to escape from the said vehicle. However, they were apprehended, namely, 1. Haopu Singso, 2. Gogou Haokip and 3. Samingon Doungel. During interrogation, those apprehended persons informed that the present petitioner and his associates were waiting for them in front of Hotel Sanchika in Amingaon. During search of the seized Thar car on being pointed by the apprehended persons 170 numbers of soap boxes containing suspected heroin were recovered from hidden chamber of the said Thar vehicle and the total weight of the recovered contraband was found to be 2kg 100grams.

4. It is pertinent to mention herein that this is for the second time, the petitioner has approached this Court seeking his bail in this case. On an earlier occasion, his bail application was rejected by this Court by an order dated Page No.# 3/14

20.03.2024, passed in B.A. Case No. 408/2024.

5. Mr. Y.S. Mannan, the learned counsel for the petitioner has submitted that more than 1 year has been elapsed since the date of rejection of the earlier order and the petitioner has therefore approached this Court with some new grounds, which were not there when the petitioner moved the bail application on the earlier occasions.

6. The learned counsel for the petitioner submits that in the instant case, the Investigating Officer has already been examined by the Trial Court as DW-1 and during his deposition he has stated that the Investigating Officer has not complied with the provisions of Section 57 of the NDPS Act, 1985 by informing his superior Officer with a detailed report of arrest and seizure within 48 hours.

7. The learned counsel for the petitioner has submitted that though the provision of Section 57 of the NDPS Act, 1985 is directory in nature. However, there has been violation of mandatory provision of Section 42(2), also in this case. He submits that the DW-1, who is the Investigating Officer, has deposed during his cross-examination that he has not submitted any report within 72 hours to his official superior and he has also not stated any grounds of belief as required under proviso to Section 42(2) for conducting the search and seizure after sunset.

8. The counsel for the petitioner has submitted that the provision of Section 42(2) is mandatory in nature and its non-compliance has to be considered even at the stage of considering a bail application. Any such, non- compliance would entitle the petitioner to get bail.

9. In support of his submission, he has cited the ruling of the Apex Page No.# 4/14

Court in the case of "Sarija Banu @ Janarthani Vs. State through Inspector of Police" reported in "(2004) 12 SCC 266" wherein it has been observed as follows:-

"7. It is pertinent to note that in the bail application of the appellants, it was alleged, that there was serious violation of Section 42 of the NDPS Act. In the impugned order nothing is stated about the alleged violation of Section 42, and it is observed that it was not necessary to consider such violation at this stage. The compliance with Section 42 is mandatory and that is a relevant fact which should have engaged the attention of the Court while considering the bail application."

10. The counsel for the petitioner has also submitted that the petitioner has been detained behind the bars for more than 1 year, 7 months. However, till date, only 3(three) out of 9(nine) listed prosecution witnesses have been examined.

11. He further submits that even the three prosecution witnesses have been again recalled by the Trial Court for further examination. Under such circumstances, he submits that there is unlikelihood of the trial culminating at the earliest, and therefore, on the ground of prolonged incarceration, he is entitled to get bail.

12. In support of his submission, he has cited the following rulings of the Apex Court in the case of-

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i. "Mohd Muslim @ Hussain Vs. State (NCT of Delhi)" reported in "2023 SCC Online SC 352";

ii. "Rabi Prakash Vs. State of Orissa " reported in "2023 SCC Online SC 1109,"

iii. "Ankur Chaudhary Vs. State of Madhya Pradesh" reported in "2024 Live Law (SC) 416",

iv. "Satender Kumar Antil Vs. Central Bureau of Investigation & Another" reported in "AIR 2022 SC 3386;"

v. "Chitta Biswas Vs. State of West Bengal" SLP Crl No. 8823/2019;

vi. "Nitish Adhikari @ Bapan Vs. State of West Bengal" reported in "2022 (0) Supreme (SC) 1936;"

vii. "Zakirul Islam @ Zakir Vs. State of Assam" SLP Crl No. 3632/2024;

viii. "Shariful Islam @ Sarif Vs. State of West Bengal" reported in "2022 SCC Online SC 2069."

13. Further, the learned counsel for the petitioner has submitted that the petitioner was not arrested when the seizure was made. Rather, he was arrested later on from a hotel on the basis of statement of the apprehended co-accused.

14. He submits that in view of the judgment of the Apex Court in the case of "Tofan Singh Vs. State of Tamil Nadu" reported in "(2021) 4 SCC 1,"

the statement of co-accused cannot be used as an evidence against the petitioner and as there is no other incriminating material against him, he is entitled to get bail in this case.

15. Lastly, the learned counsel for the petitioner has also submitted that Page No.# 6/14

in the instant case, there has been a violation of the constitutional as well as statutory mandate of providing grounds of arrest to the accused (petitioner) immediately after his arrest. As in the instant case, no such grounds of arrest were been mentioned in the notice under Section 50 of the Code of Criminal Procedure, 1973 which was served on the petitioner at the time of his arrest, he submits that as there has been a total disregards to the constitutional mandate of providing grounds of arrest at the time of arrest to the petitioner. Hence, the detention of the petitioner itself has been vitiated and therefore, on that ground, he is entitled to get bail.

16. In support of his submission, the learned counsel for the petitioner has cited following rulings of the Apex Court in the case of-

i. "Vihaan Kumar Vs. State of Haryana and Another" reported in "2025 SCC OnLine SC 269;"

ii. "Prabir Purkayastha Vs. State (NCT Delhi)" reported in "2024(8) SCC 254;"

iii. "Pankaj Bansal Vs. Union of India" reported in "(2024) 7 SCC 576;"

iv. "Mashu Limage and others Vs. Unknown" reported in "(1969) 1SCC 292;"

v. Ashish Kakkar Vs. Union of Chandigarh SLP Crl No. 1662/2025;

vi. "Directorate of Enforcement Vs. Subhash Sharma" reported in "2025 SCC online SC 240."

17. On the other hand, the learned Additional Public Prosecutor, Mr. M.P. Goswami, has vehemently opposed the grant of bail to the present petitioner.

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He submits that on an earlier occasion, this Court rejected the prayer for bail of the petitioner on the ground that there are incriminating materials against the petitioner and the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case.

18. He also submits that the quantity of contraband recovered in this case is huge quantity, i.e.,2 Kg 100 grams and the vehicle from which the contraband was recovered was found to be of the present petitioner.

19. He submits that the petitioner has also been involved in other NDPS cases, and therefore, the second condition of the Section 37 is not fulfilled in this case, as there is every likelihood that in the event of his release on bail, he would again indulge in the offence related to NDPS cases.

20. The learned Additional Public Prosecutor has further submitted that the plea of prolonged incarceration may also not be applicable in the case of the present petitioner, as it is the other co-accused, who changed their counsel in the midst of trial and as there was no fault on the part of the prosecution side, the petitioner may not get the benefit of the bail on the ground of prolonged incarceration.

21. However, as regards the plea of non-furnishing of the grounds of arrest, the learned Additional Public Prosecutor fairly submits that though notice under Section 50 of the Code of Criminal Procedure, 1973 was served on the petitioner, same only contains the police station case number, as well as parallel provisions involved in the case. No other ground of arrest has been mentioned in the same.

22. However, he submits that the plea of non-furnishing of grounds of arrest may not be taken by the petitioner at this stage, as by now he is well Page No.# 8/14

aware of the grounds for which he was arrested.

23. He further submits that at the time of his arrest, the petitioner never took the plea of non-furnishing of the grounds of arrest and it is for the first time he is taking such grounds before this Court.

24. I have considered the submissions made by the petitioner for both the sides and have perused the materials available on record, including the scanned copy of the records of NDPS Case No. 03/2024.

25. Though the earlier bail application filed by the petitioner was rejected by this Court on the ground that the embargo of Section 37 of the NDPS Act, 1985 is there in this case and the petitioner was unable to show any material on the record to overcome such embargo, however, after the said rejection order, more than 1 year has been elapsed and certain new materials have been brought to the notice of this Court.

26. Though, the petitioner has assailed as many as five grounds for seeking bail in this case. However, this Court is of considered opinion that the grounds taken by the petitioner regarding violation of the constitutional mandate are more serious in nature and therefore, this Court is inclined to consider those grounds first.

27. As regards the ground of prolonged incarceration is concerned, the Apex Court has observed in the case of " Mohd Muslim @ Hussain Vs. State (NCT of Delhi)" (supra) that "grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985".

28. The Apex Court in "Rabi Prakash Vs. State of Orissa" (supra) has observed that

"the prolonged incarceration, Page No.# 9/14

generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1) (b)(ii) of the NDPS Act."

29. In the case of "Ankur Chaudhary Vs. State of Madhya Pradesh"

(supra), the Supreme Court of India has observed as follows: -

"...........it is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered."

30. In this regard the observations made by the Apex Court in the case of "Satender Kumar Antil Vs. Central Bureau of Investigation & Another"

(supra) are relevant, same are quoted here in below:

"49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence.

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Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the noncompliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the Court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite Page No.# 11/14

a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own."

31. In the instant case also, the petitioner has been detained behind the bars for more than 1 year and 7 months, and only 3(three) out of total 9(nine) listed prosecution witnesses have been examined. Though those 3(three) witnesses have again been recalled on application of the counsel for the co- accused, the submission of the learned Additional Public Prosecutor that it is due the fault of the petitioner that the trial is not progressing is not tenable, under the facts and circumstances of this case. The petitioner has been detained behind the bars since the date of his arrest and there appears to be no fault on his part for delay in trial.

32. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, for whatsoever reason if inordinate delay is caused and if without any fault on the part of the petitioner, he is kept under detention for a long period, it would certainly infringe his fundamental rights guaranteed under Article 21 of the Constitution of India. Under such circumstances, his constitutional rights guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only.

33. As such, this Court is of the considered opinion that the petitioner is entitled to get bail in the instant case on the ground of prolonged incarceration only.

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34. Secondly, on perusal of the notice under Section 50 of the Code of Criminal Procedure, 1973, which was served on the petitioner in this case, it appears that apart from the police station case number as well as the penal provisions involved in the case, nothing has been mentioned therein. No basic facts which necessitated the arrest of the petitioner were stated in the said notice. It, therefore, it appears that the grounds of arrest were not furnished to the petitioner at the time when he was arrested.

35. The submissions made by the learned Additional Public Prosecutor that as the plea of not furnishing the grounds of arrest was not taken by the petitioner at the earliest instance and as by now he is aware of the grounds of arrest, therefore, he cannot take such a ground, i.e. (not furnishing of grounds of arrest) at this stage for seeking bail appears to be untenable in law.

36. As the furnishing of grounds of arrest is not only a statutory requirement under Section 50 of the Code of Criminal Procedure, 1973 but also a constitutional mandate under Section 22(1) of the Constitution of India, therefore, non compliance of such a constitutional mandate would render the arrest of the petitioner illegal and under such circumstances the petitioner cannot be detained behind the bars and on that ground itself, he is entitled to get bail.

37. Though, the other grounds taken by the petitioner in this case, i.e., the violation of Section 57 of the NDPS Act, 1985, violation of Section 42 of the NDPS Act, 1985 as well as the implication of the petitioner merely on the basis of the statement of the co-accused also appears to have some force, however, this Court does not intend to discuss those grounds as it appears that on the basis of prolonged incarceration as well as non furnishing of the grounds of arrest at the time of his arrest which has resulted in the violation of the Page No.# 13/14

constitutional rights guaranteed under Article 21 of the Constitution of India, the petitioner is entitled to get bail.

38. For the reasons discussed in foregoing paragraphs, this Court is of the considered opinion that the petitioner is entitled to get bail.

39. In view of the above, the above-named petitioner, is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned District and Sessions Judge, Kamrup, Amingaon with the following conditions:

i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 03/2024, which is pending in the Court of the learned District and Sessions Judge, Kamrup, Amingaon;

ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;

iii. 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 before the Trial Court in the trial pending against the present petitioner;

iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court;

v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court;