Gauhati High Court

Page No.# 1/13 vs The Union Of India on 14 May, 2025

                                                                            Page No.# 1/13

GAHC010081092025




                                                                     2025:GAU-AS:5944

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

                               Case No. : Bail Appln./1281/2025

            JANGPAO HAOKIP AND ANR
            S/O- SRI THANGSEI HAOKIP, R/O- TAINUMJANG, SAIKUL, PO- SEMOL, PS
            SAIKUL, DIST- KANGPOKPI, MANIPUR, PIN- 795145

            2: SRI PAOKHOLAL HAOKIP
             S/O SRI DOUKHOLET HAOKIP
            R/O S. MOLCHAM
             CHURACHAHPUR
            P.O. AND P.S. CHURACAHPUR
             DIST. CHURACAHPUR
             MANIPUR
             PIN-79512

            VERSUS

            THE UNION OF INDIA
            REP BY SC, DRI



Advocate for the Petitioner   : MS. S K NARGIS, A SAHA,MR F H LASKAR (2),MS N
SULTANA,MS S BEGUM

Advocate for the Respondent : SC, DRI, MS B S CHAKRABORTY, SPL. P.P., DRI




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                          ORDER

Date : 14-05-2025 Page No.# 2/13

Heard Ms. S.K. Nargis, the learned counsel for the petitioners. Also heard Ms. P.S. Chakraborty, the learned Special PP, DRI.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioners, who has been arrested in connection with Special (NDPS) Case No. 92/2024 [arising out of DRI Case No. 16/2023-24] registered under Sections 21(C)/29 of NDPS Act.

3. Scanned copy of the case record is received. Perused the same.

4. It is submitted by Ms. Nargis, the learned counsel for the petitioners, that the present accused/petitioners were arrested in connection with this case on 15.09.2023 and since last more than 1 year 8 months they are in custody. She further submitted that the case was filed on 28.08.2024 and charge was framed on 14.10.2024. The prosecution examined 3 [three] witnesses out of the 12 [twelve] cited witnesses till date. Accordingly she submitted that trial could not be completed within a considerable period and hence, considering the period of length of incarceration the present petitioners may be granted the privilege of bail. She further submitted that the co-accused persons have already released on bail by coordinate Bench of this Court and considering the bail of the present petitioners in the same footing, they may be released on bail on the ground of parity.

5. In this context, Ms. Nargis also relied on the following decisions of Hon'ble Apex Court wherein the period of incarceration was considered while granting bail to the petitioners.

(i) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC OnLine SC 2068] Page No.# 3/13

(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022]

(iii) Merina Bibi Vs. The State of West Bengal, [@ SLP (CRL.) No. 13428/2024]

(iv) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109]

(v) Biswajit Ghosh @ Chottu & Anr. Vs. State of West Bengal [@ SLP (CRL.) No. 14045/2024]

6. Ms. Nargis, the learned counsel for the petitioners has submitted that there is no proper compliance of Section 50/50A Cr.PC. From the copy of the notice issued u/s 50 Cr.PC, it is seen that the petitioner no. 1 had put his thumb impression on the notice whereas the petitioner no 2 put his signature in English. But, the petitioner no. 1 had put his signature on the other documents and hence it is doubtful as to whether the thumb impression which is taken in the notice issued u/s 50 Cr.PC is the thumb impression of the petitioner no. 1 and there is no endorsement below the thumb impression of the petitioner no.

1. Further she submitted that there are some grounds were mentioned in the notice u/s 50 Cr.PC but that cannot be considered as total compliance of Section 50 Cr.PC. There is no note of the I/O as to whether the grounds were explained in their language as both the petitioners are the resident of Manipur and thus they may not be acquainted with the English language which were that the statement made in the notice u/s 50 Cr.PC is written in English language.

7. In that context Ms. Nargis relied on the decision of Hon'ble Apex Court passed in case of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269, wherein it has been held by the Hon'ble Apex Court that the communication of ground of arrest should be in the language which he Page No.# 4/13

understand for the sufficient compliance as mandated under Article 22(5) of the Constitution of India. Para 13 of the said judgment is read as under:

"13. In the case of Lallubhai Jogibhai Patel v. Union of India4, in paragraph 20, this Court held thus:

"20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the "grounds" should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the "ground" to the detenu is to enable him to make a purposeful and effective representation. If the "grounds" are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra [1962 Supp 2 SCR 918 : AIR 1962 SC 911 : (1962) 1 Cri LJ 797] and Hadibandhu Das v. District Magistrate [(1969) 1 SCR 227 : AIR 1969 SC 43 : 1969 Cri LJ 274]."

(emphasis added) Therefore, as far as Article 22(1) is concerned, compliance can be made by communicating sufficient knowledge of the basic facts constituting the grounds of arrest to the person arrested. The grounds should be effectively and fully communicated to the arrestee in the manner in which he will fully understand the same. Therefore, it follows that the grounds of arrest must be informed in a language which the arrestee understands. That is how, in the case of Pankaj Bansal1, this Court held that the mode of conveying the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. However, under Article 22(1), there is no requirement of communicating the grounds of arrest in writing. Article 22(1) also incorporates the right of every person arrested to consult an advocate of his choice and the right to be defended by an advocate. If the grounds of arrest are not communicated to the arrestee, as soon as may be, he will not be able to effectively exercise the right to consult an advocate. This requirement incorporated in Article 22(1) also ensures that the grounds for arresting the person without a warrant exist. Once a person is arrested, his right to liberty under Article 21 is curtailed. When such an important fundamental right is curtailed, it is necessary that the person concerned must understand on what grounds he has been arrested. That is why the mode of conveying information of the grounds must be meaningful so as to serve the objects stated above."

8. Ms. Nargis, the learned counsel for the petitioner further submits that Page No.# 5/13

though there is a partial compliance of Section 50 Cr.PC but there is total non- compliance of section 50A Cr.PC corresponding to Section 48 BNSS for communicating the grounds of arrest to the family members of the petitioners which is also mandatorily required as held by the Hon'ble Apex Court in case of Vihan Kumar (supra). Ms. Nargis accordingly submitted that on the ground of non-compliance of Section 50/50A Cr.PC, the petitioners are entitled for bail which violates the mandate of Article 221 of the Constitution.

9. Ms. S. Chakraborty, the learned Special PP, DRI submitted in this regard that there are sufficient incriminating materials against the present accused/petitioners and both the accused/petitioners also confessed their guilt while recording their statement u/s 67 BNSS and sufficient materials are already collected during the investigation of the case. Further she submitted that there are sufficient compliance of Section 50 Cr.PC wherein the grounds of arrest were intimated/communicated to the present petitioners.

10. Ms. S. Chakraborty further relied on a decision of Hon'ble Supreme Court passed in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 0 Supreme(SC) 104], wherein it is held that " if a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be question as being violative of Article 21 since the same is authorized by law."

11. Ms. S. Chakraborty further relied on a decision of Hon'ble Supreme Court which was reported vide 2024 0 Supreme(SC) 1264 [Narcotics Control Bureau Vs. Kashif] and emphasized on paragraph No. 39 (i) (ii), which reads Page No.# 6/13

as under:

"39. The upshot of the above discussion may be summarized as under:

(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

..."

12. She also relied on a decision of the Hon'ble Apex Court passed in the case of The State of Meghalaya Vs. Lalrintluanga Sailo & Anr. [Special Leave to Appeal (Crl.) No(s). 16021/2023], wherein the Apex Court has expressed the view that the bail cannot be granted even to a HIV patient only on the sole reason of illness and if the twin conditions under Section 37 NDPS Act are not satisfied. Further it is held that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 NDPS Act is impermissible. He further emphasized on paragraph Nos. 8 & 10 of the judgment, which read as under:

"8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the decisions referred supra revealing the consistent view of this Court that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications.

Page No.# 7/13

...

10. The subject FIR viz., FIR No. 06(02)23 under Section(s) 21(c)/29 of the NDPS Act, would reveal that the quantity of the contraband involved is 1.040 kgs of heroin. The impugned order granting bail to accused-Smt. X, dated 29.09.2023 would reveal, this time also, the bail was granted on the ground that she is suffering from HIV and conspicuously, without adverting to the mandate under Section 37(1)(b)(ii), NDPS Act, even after 6 taking note of the fact that the rigour of Section 37, NDPS Act, calls for consideration in view of the involvement of commercial quantity of the contraband substance. When the accused is involved in offences under Section 21(c)/29 of NDPS Act, more than one occasion and when the quantity of the contraband substance viz., heroin is 1.040 Kgs, much above the commercial quantity, then the non-consideration of the provisions under Section 37, NDPS Act, has to be taken as a very serious lapse. In cases of like nature, granting bail solely on the ground mentioned, relying on the decision in Bhawani Singh v. State of Rajasthan3 would not only go against the spirit of the said decision but also would give a wrong message to the society that being a patient of such a disease is a license to indulge in such serious offences with impunity. In the contextual situation it is to be noted that in Bhawani Singh's case the offence(s) involved was not one under the NDPS Act. We have no hesitation to say that in the above circumstances it can only be held that the twin conditions under Section 37 of the NDPS Act, are not satisfied and on the sole reason that the accused is a HIV patient, cannot be a reason to enlarge her on bail. Since the impugned order was passed without adhering to the said provision and in view of the rigour thereunder the accused-Smt.X is not entitled to be released on bail, the impugned order invites interference."

13. She further relied on following decisions of Hon'ble Apex Court in support of her submissions:

     (i)     State of Kerala Vs. Rajesh [(2020) 12 SCC 122]


     (ii)    Talab Mazi Hussain Vs. Madhukar Purushattam Mondkar & ors. [1958 SCR 1226]

(iii) Narcotics Control Bureau Vs. Mohit Aggarwal [2022 SCC OnLine 891]

(iv) Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI [(2007) 1 SCC 70]

(v) Pramod Kumar Saxena Vs. Union of India [(2008) 9 SCC 685] Page No.# 8/13

(vi) Satyender Kumar Antil Vs. CBI [(2022) 10 SCC 51]

(vii) Gurwinder Singh Vs. State of Punjab [2024 0 Supreme (SC) 104]

14. Citing the above referred judgments, it is submitted by Ms. S. Chakraborty, learned Special PP, DRI, that the long incarceration and the violation of fundamental rights under Article 21 of the Constitution of India or the delay in trial cannot be the ground for allowing the accused persons to go on bail in a heinous crime like NDPS case. He further submitted that Article 21 of the Constitution guarantees the personal liberty to everyone, however the same cannot be taken away except in accordance with the procedures established by law. In a criminal law, a person accused of an offence, which is non-bailable, is liable to be detained in custody during the pendency of the trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of since the same is authorized by law. When the seriousness of an offence is such, the mere fact that he was in jail for however long time should not be the concern of the court and in heinous crime, length of tenure in custody may not be the only factor of consideration for the grant of bail. He further submitted that granting bail to the accused/petitioners at this stage may hamper the trial of the case or there may be the influencing of witnesses who are yet to be examined and there is every likelihood of the accused jumping over the condition of bail.

15. Ms. Chakraborty further submitted that though there is no written communication of notice u/s 50A Cr.PC but from the note of the I/O it is very Page No.# 9/13

specific that he informed the family members of the petitioners through telephone intimating the arrest of the petitioners.

16. More so, Ms. Chakraborty submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record, it cannot be said that the present petitioners are innocent, they have not committed such offence nor there is any probability of committing similar kind of offence if they are released on bail. Thus, she raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioners on bail at this stage.

17. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioners under Section 50 of Cr.P.C. It is accordingly seen that there is some compliance of Section 50 Cr.PC in regards to communicating the grounds of arrest to the petitioners. But, it is a fact that there is no specific note or order as to whether the communication with the petitioners were made in their own language or the language they understand as admittedly both the petitioners belong to the State of Manipur.

19. In case of Vihan Kumar (supra) it has been held by the Hon'ble Apex Court that "the requirement of informing the person arrested on the grounds of Page No.# 10/13

arrest is not merely a formality, but a mandatory constitutional requirement under Article 22 of the Constitution."

20. Further in case of Vihan Kumar (supra) it has been held by the Hon'ble Apex Court that requirement of communicating the ground of arrest to family members/relatives or such other person of the accused/petitioner as may be disclose or nominated by the accused for the purpose of giving such information as provided under Section 50A [corresponding to Section 48 of BNSS] may be noted, this is an addition of the requirement as provided under section 50(1) of Cr.P.C. She further emphasized on paragraph Nos. 2 & 3 of the second part of the said judgment which read as under:

"2. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha (supra). The said constitutional mandate has been incorporated in the statute under Section 50 of the Cr.P.C (Section 47 of BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50A of the Cr.P.C. As may be noted, this is in the addition of the requirement as provided under Section 50(1) of the Cr.P.C.

3. The purpose of inserting Section 50A of the Cr.P.C, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such Page No.# 11/13

nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualizing the fundamental right to liberty and life as guaranteed under Article

21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal."

21. Further it is seen that the prosecution could examine only 3 [three] witnesses till date out of 12 [twelve] nos. of cited witnesses and hence the completion of trial in the near future also cannot be expected at this stage.

22. The Hon'ble Supreme Court in the case of Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109], has granted bail to the accused with a view that "the prolonged incarceration, 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."

23. So, considering all above aspects of the case and also considering the observation made by the Hon'ble Apex Court in the various judgments, as discussed above, and further considering the other facts and circumstances of this case, this Court is of the opinion that the period of long incarceration undergone by the accused/petitioner for more than 1 (one) year, 8 (eight) Page No.# 12/13

months days may be considered as a ground for bail with the non-compliance of proper conditional liberty considering the fundamental right guaranteed under Sections 50/50A of Cr.PC and, therefore, without going into the merit of the case, I am inclined to grant bail to the present accused/petitioners.

24. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge (NDPS), Kamrup (M), Guwahati, the accused/petitioners, namely, [1] Sri Jangpao Haokip and [2] Sri Paokholal Haokip be enlarged on bail, subject to the following conditions:

(i) that the petitioners shall appear before the Court of learned Special Judge (NDPS), Kamrup (M), Guwahati on each and every date to be fixed by the Court;

(ii) that the petitioners shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;