Page No.# 1/8 vs The Union Of India
2025 Latest Caselaw 326 Gua

Gauhati High Court

Page No.# 1/8 vs The Union Of India on 8 May, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                          Page No.# 1/8

GAHC010081382025




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

                               Case No. : Bail Appln./1206/2025

            ASHIK MIAH AND 2 ORS.
            S/O HAREJ MIAH
            R/O VILLAGE MULLAPARA, KAMTHANA ROAD, PO
            PURATHAL,RAJNAGAR, PS MADHUPUR, DISTRICT SIPAHIJALA, TRIPURA-
            799100

            2: DEBU DEBNATH
             S/O PRIYALAL DEBNATH
            R/O VILLAGE MURABARI PASCHIM LAKKHIBIL
             PO AND PS BISHALGARH
             DISTRICT SIPAHIJALA
            TRIPURA-799102

            3: SUNIL KUMAR CHAUHAN
             S/O LATE MOHAN CHAUHAN
            R/O NAHILAPAR
             PS PAKHRI
             DISTRICT BALIA
             UTTAR PRADESH-22171

            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE STANDING COUNSEL, NCB



Advocate for the Petitioner   : MR. M BISWAS, A GHOSAL,J SINGPHO

Advocate for the Respondent : SC, NCB,
                                                                      Page No.# 2/8

                                 BEFORE
                    HONOURABLE MRS. JUSTICE MALASRI NANDI

                                       ORDER

Date : 08.05.2025

Heard Mr. M. Biswas, learned counsel for the petitioners as well as Ms. M. Deka, learned counsel appearing on behalf of NCB.

2. By filing this application U/S 483 of the BNSS, 2023, the petitioners, namely, (1) Ashik Miah (2) Debu Debnath and (3) Sunil Kumar Chauhan, have sought for bail in connection with NDPS Case No.133/2023 (corresponding to NCB Crime No. 05/2023), under Section 20(b)(ii)(C)/ 29 of the NDPS Act, pending in the Court of learned Additional Sessions Judge No.2, Kamrup (M), Guwahati.

3. The prosecution case in brief is that on 17.03.2023,on receipt of an information from a reliable source that one person namely Shajan Miah will be carrying a huge quantity of Ganja which were concealed inside specially made cavity above passenger sitting area of one Mahindra Savari vehicle bearing Regd. no. TR-01B4290. Accordingly, search operation was conducted and the aforesaid vehicle was intercepted along with driver of the vehicle Shajan Miah. During search, 19 packets of Ganja weighing 119.62 kgs were found from the said vehicle and seized accordingly.

4. It was urged by learned counsel for the petitioners that seizure list shows that contraband item was seized from one Shajan Miah. It is an admitted fact that no any narcotic drug was recovered from the possession of the petitioners. The petitioners were not even aware as to what was loaded in the said Mahindra Savari passenger vehicle.

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5. It is further submitted that the petitioners were arrested only on the basis of statement of arrested co-accused made U/S 67 of the NDPS Act. In terms of the ratio laid down by the Hon'ble Apex Court in Toofan Singh Vs. State of Tamil Nadu 2021 (4) SCC 1, a statement made under section 67 of the NDPS Act is an inadmissible piece of evidence.

6. The learned counsel for the petitioners has also contended that the petitioner are in custody for more than two years since their arrest on 18.03.2023 and 12.05.2023 respectively. Out of 13 witnesses only 3 witnesses have been examined by the Trial Court. It is difficult to believe that the trial of the case will be completed within a short span of time.

In support of his submission, the learned counsel for the petitioners has placed reliance on the following case law-

(i) Rabi Prakash Vs. State of Orissa, reported in (2023) Supreme SC 707.

(ii) Dhiraj Kumar Shukla Vs. State of UP, reported in SLP (CRL) 6690/2022.

7. The main thrust of argument for the learned counsel for the petitioners is that no grounds of arrest was communicated to the petitioners in the notice served upon them U/S 50 Cr.P.C. (U/S 47 BNSS) as well as no notice was served to their representatives U/S 50(A) Cr.P.C (U/S 48 BNSS) which are mandatory in nature, which resulted in violation of their fundamental rights guaranteed under Articles 21/22 of the Constitution of India. Accordingly, the petitioners are entitled for bail.

8. On that issue, learned counsel has relied on the following case laws .

(i) Prabir Purkaystha Vs. NCT of Delhi (2024) 8 SCC 254.

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(ii) Vihaan Kurmar Vs. State of Haryana and another, reported in (2025) SCC Online (SC) 269.

9. Per Contra, Ms. Deka, has submitted that once the charge sheet has been laid, the question of grant of bail has to be considered and decided only with reference to the merits of the case vide the judgment of the Hon'ble Supreme Court reported in (2024) 3 SCC 734 (CBI Vs. Kapil Wadhawan and another).

10. By referring the judgment of NCB Vs. Kashif vide (2024) SCC online SC 3848, Ms. Deka has pointed out that the Hon'ble Supreme Court has determined the fact for granting bail in case of NDPS Act in paragraph 39 of the said case. Accordingly, the learned counsel representing the NCB has prayed for dismissing the bail application.

11. I have considered the submission of the learned counsel and also perused the Trial Court record.

12. Regarding prolonged incarceration admittedly, the accused petitioners were arrested on 18.03.2023 and 12.05.2023 respectively i.e., they have been detained in custody for more than two years. Charge was framed on 19.12.2023. After that one and half years have been elapsed but the prosecution has examined only 3 witnesses out of cited 13 witnesses in the charge sheet. It is true that prolonged incarceration may not be a ground to release the accused on bail but which has some limitation. There is no explanation from the side of the NCB regarding such delay of process of trial. It is also not in dispute that the alleged contraband was recovered from the possession of one Shajan Miah.

13. It is pertinent to say here that in the case of Kapil Wadhawan (Supra), it Page No.# 5/8

was discussed regarding statutory right of default bail U/S 167 Cr.P.C. which is not applicable in the instant case. Coming to the case of Kashif (Supra) the Hon'ble Supreme Court has stated that while considering the application for bail the Court must bear in mind the provision of Section 37 of the NDPS Act which are mandatory in nature. However, in the case of Vihaan Kumar (Supra) it is specifically stated when violation of Article 22(1) is established, it is the duty of the Court forthwith order the release of the accused and that will be a ground to grant bail, even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the Court to grant bail when the violation of Articles 21 and 22 is established.

14. In another case vide Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 SCC Online SC 934 , wherein it has been categorically held that the law laid down in the case of Pankaj Bansal (supra) would be squarely applicable in cases under the UA (P) Act or for that matter any other offences. The accused has fundamental and statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest and non-supply of written grounds of arrest to the arrested person would vitiate the arrest even if the case has been charge-sheeted.

15. In the case of Vihan Kumar vs. State of Haryana, reported in 2025 SCC Online SC 269, wherein the Hon'ble Apex Court has referred the case of Pankaj Bansal, (2024) 7 SCC 576 and the case of Prabir Purkayastha (Supra)

and the Court held as follows -

"28. The language used in Article 22(1) and Article 22(5) of the

Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions Page No.# 6/8

require that the "grounds" of "arrest" or "detention", as per the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned.

29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Article 22(1) and Article 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non- compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be."

16. In the case in hand, as it appears from the record that on 18.03.2023, the NCB issued notice under Section 50 Cr.P.C. to the petitioner Nos. 1 and 2 and thereafter, another notice was issued by the NCB on 12.05.2023 to the petitioner No. 3 which is reproduced as follows-

"You are hereby informed that you are arrested in connection with above

reference case and the case is cognizable and non-bailable. So you are forwarded to the Court. You may submit petition before the Hon'ble Court for your bail."

17. From the aforesaid notice issued to the petitioners vide NCB Case Page No.# 7/8

No.05/2023, it reveals that no grounds of arrest have been informed to the petitioners as alleged which is mandatory in nature.

18. In view of the aforesaid legal proposition, it can be said that an arrested person must be informed of the ground of his arrest and detention which is mandatory in nature. Admittedly, in the case in hand, there is no reflection in the arrest memo or the Section 50 Cr.P.C. notice issued to the petitioners that the grounds of arrest was being informed to the petitioners at the time of their arrest. Accordingly, the petitioners are entitled for bail.

19. The accused namely, (1) Ashik Miah (2) Debu Debnath and (3) Sunil Kumar Chauhan, shall be released on bail on furnishing a bail bond of Rs.2,00,000/-( Rupees Two Lakhs) each with two sureties each of the like amount out of which one of the surety must be Government employee in the State of Assam, to the satisfaction of the learned Additional Sessions Judge No.2, Kamrup (M), Guwahati, Assam.

20. The direction for bail is further subject to the following conditions-

(i) that the accused petitioners shall not leave the territorial jurisdiction of the learned Additional Sessions Judge No.2, Kamrup (M), Guwahati, Assam without prior written permission from him/her till disposal of the case;

(ii) that the petitioners shall regularly attend the trial Court and cooperate with the Court for early disposal of the trial.

21. The learned Additional Sessions Judge, No.2, Kamrup (M), Guwahati, Assam is at liberty to impose any other condition(s) as it deems fit and proper at the time of releasing the accused/petitioners on bail to procure their attendance during trial.

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22. The observation made by the Court is for the purpose of this bail application only, not on merits of the case.

23. In terms of the above, this bail application stands disposed of.

JUDGE

Comparing Assistant