Gauhati High Court
Md Faruque Khan vs The Union Of India on 26 May, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
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GAHC010093662025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1621/2025
MD FARUQUE KHAN
SON OF MD. RAFIQUL
R/O SANGIYUMPHAM NUNGPHOU
P.S. AND DIST. THOUBAL
P.O. WANGJING
STATE- MANIPUR
PIN-795148.
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL NARCOTIC CONTROL
BUREAU (NCB)
GUWAHATI UNDER THE MINISTRY OF HOME AFFAIRS
DEPARTMENT OF INTERNAL SECURITY
GOVERNMENT OF INDIA
NEW DELHI.
------------
Advocate for : MR S BORTHAKUR
Advocate for : SC
NCB appearing for THE UNION OF INDIA
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BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date :
26.05.2025
Heard Mr. M. Ali, learned counsel for the petitioner as well as Ms. M. Deka,
learned counsel representing the NCB.
2. By filing this application U/S 483 of the BNSS, 2023, the petitioner, namely,
Md. Faruque Khan, has sought for bail in connection with NDPS Case No.
129/2024 (arising out of NCB Guwahati Crime No. 17/2023) under Section 8(c)
to be r/w Section 21(c)/29 of NDPS Act, pending in the Court of learned Special
Judge, Kamrup(M), Guwahati, Assam.
3. The factual matrix leading to this bail application is that on 16.10.2023, on
the basis of secret information, the intelligence officer, NCB moved at HB lodge,
VIP road, Six Mile, Guwahati. On being arrived there, one Honda City car
bearing Regd. No. AS-01-AJ-8180 was found wherein two persons were sitting
inside the car. Thereafter, search was conducted and recovered 37 soap cases of
different colours, containing suspected heroin and seized the same. Accordingly,
a case was registered and subsequently the petitioners were arrested.
4. It is submitted by the learned counsel for the petitioners that the petitioner
has been languishing in judicial custody for more than one and half years since
his arrest on 17.10.2023. It is also submitted by the learned counsel for the
petitioner that after completion of investigation, on 06.04.2024, charge sheet
has been laid. It is further submitted that on 29.08.2024, charge has been
framed against the accused/petitioner. However, no witness is examined till
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date.
5. It is further submitted by the learned counsel for the petitioner that the
petitioner has been falsely implicated in this case and he is no way involved in
the instant case. It is also submitted that no grounds of arrest was
communicated to the petitioner in the notice served on him U/S 50 Cr.P.C. (U/S
47 BNSS) which is mandatory in nature, thereby violating the mandates of
Article 21/22 of the Constitution of India.
In support of his submission, the learned counsel for the petitioner
has placed reliance on the following case laws-
(i) Prabir Purkayastha vs. state (NCT of Delhi), reported in (2024) 8
SCC 254.
(ii) Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & Anr.
Reported in 2005 0 Supreme (SC) 104.
(iii) Md. Sahid Alam vs. The Union of India, in BA/1143/2025.
6. The learned counsel for the petitioner further submitted that in the case of
Rabi Prakash vs. The State of Odisha, reported in 2023 Livelaw (SC) 553, it was
held 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 embergo
created under Section 37(1)(b)(ii) of NDPS Act." In view of the acquisition spelt
out against the petitioner as well as considering the period of detention, bail
may be granted to the petitioner.
7. Per contra, Ms. Deka, learned counsel appearing for the NCB, has
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submitted that commercial quantity of heroine was recovered from the
conscious possession of the petitioner. As the commercial quantity of
contraband item is involved in the instant case as such, the embargo under
Section 37 of NDPS Act will come into play. It is also submitted one PW has
been examined and cross examination part was reserved. Hence, she has
opposed in granting bail to the petitioner. However, she has further submitted
that the grounds of arrest have been mentioned in the arrest memo issued to
the petitioner.
Learned NCB counsel has referred the following cases:
(i) Abdul Salik & Anr. Vs. The State of Assam in BA/2656/2024.
(ii) Rashid Hoque vs. The Union of India in BA/1153/2025.
8. I have considered the submissions made by the learned counsel for the
parties and I have also perused the trial court record.
9. It appears that the petitioner has been languishing in judicial custody for
more than one and half years and the NCB has failed to complete the trial within
such stipulated period. It is true that earlier the petitioner was directed to approach
the trial court with an appropriate application and the same was rejected by the
trial court. Now, the question comes whether prolonged incarceration could be only
the ground for granting bail to the petitioner.
10. In this case, the quantity of contraband is commercial and the same is 457
gm of heroin. Therefore the rigor of Section 37 of the NDPS Act would squarely
apply. Section 37 of the NDPS Act provides as under:
"37. Offences to be cognizable and nonbailable.-- (1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act shall be cognizable;
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(b) no person accused of an offence punishable for offences under section
19 or section 24 or section 27A and also for offences involving commercial
quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the
application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is
satisfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence while
on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-
section (1) are in addition to the limitations under the Code of Criminal
Procedure, 1973 (2 of 1974) or any other law for the time being in force
on granting of bail."
11. On a perusal of Section 37(1)(a)(i) of NDPS Act, when the Public
Prosecutor opposes bail application of a person involved in a crime, where
commercial quantity of the contraband was seized, the Court can grant bail only
after satisfying two conditions: viz; (1) There are 'reasonable grounds' for
believing that the accused is not guilty of such offences and (2) he will not
commit any offence while on bail.
12. The Apex Court considered the meaning of 'reasonable grounds' in the
decision reported in (2007) 7 SCC798, Union of India v. Shiv Shankar Kesari and
held that the expression 'reasonable grounds' means something more than
prima facie grounds. It connotes substantial probable causes for believing that
the accused is not guilty of the offence charged and this reasonable belief
contemplated in turn points to existence of such facts and circumstances as are
sufficient in themselves to justify recording of satisfaction that the accused is
not guilty of the offence charged.
13. It was further held that the Court while considering the application for bail
with reference to Section37 of the Act is not called upon to record a finding of
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not guilty. It is for the limited purpose essentially confined to the question of
releasing the accused on bail that the Court is called upon to see if there are
reasonable grounds for believing that the accused is not guilty and records its
satisfaction about the existence of such grounds. But the Court has not to
consider the matter as if it is pronouncing a judgment of acquittal and recording
a finding of not guilty.
14. While considering the rider under Section 37 of the NDPS Act, the same
principles have been reiterated, in the decisions reported in Superintendent,
Narcotics Central Bureau v. R.Paulsamy [2000 KHC 1549: AIR 2000 SC 3661:
(2000) 9 SCC 549: 2001 SCC (Cri) 648: 2001 CrilLJ 117], Customs, New Delhi v.
Ahmadalieva Nodira [2004 KHC 505: AIR 2004 SC 3022:2004(3) SCC 549: 2004
SCC (Cri) 834: 2004 (110) DLT 300: 2004 CriLJ 1810: 2004 (166) ELT 302],
Union of India v. Abdulla [2004 KHC 1992: 2004(13) SCC 504: 2005 CriLJ 3115:
2005 All LJ 2334], N.R.Mon v. Md.Nasimuddin [2008 KHC 6547: 2008(6) SCC
721: 2008(2) KLD 316: 2008(2) KLT 1022: 2008(9) SCALE 334: AIR 2008 SC
2576:2008 CriLJ 3491: 2008(3) SCC (Cri) 29], Union of India v. Rattan Malik
[2009 KHC 4151: 2009(2) SCC 624: 2009(2) KLT SN 83: 2009 (1) SCC (Cri)
831:2009 CriLJ 3042: 2009 (4) ALL LJ 627: 2009(2) SCALE 51], Union of India
v. Niyazuddin [2017 KHC 4465: AIR 2017 SC 3932: 2018 (13) SCC 738], State of
Kerala v. Rajesh [2020(1) KHC 557: AIR 2020 SC 721: 2020(1) KLJ 664: 2020(2)
KLT SN1 : ILR 2020(1), Ker.848]. Latest decision on this point is [2023 Cri.LJ
799], Union of India v. Jitentra Giri.
15. On a plain reading of Section 37(1) (b) and 37(1)(b)(ii) of the NDPS Act,
within the ambit of the Settled law, it has to be understood that two ingredients
shall be read conjunctively and not disjunctively. Therefore, satisfaction of both
conditions are sine qua non for granting bail to an accused who alleged to have
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been committed the offences under Section 19 or Section 24 or Section 27A and
also for the offences involving commercial quantity as provided under Section
37(1)(b) of the NDPS Act. Unless Section 37 is not amended by the legislature in
cases specifically referred under Section 37(1)(b) of the NDPS Act, the Court
could not grant bail without recording satisfaction of the above twin ingredients.
16. In the case in hand, it is not in dispute that the alleged contraband items
were recovered from the possession of the petitioner. It is seen that the trial is
going on as such at this stage, it is too early to give any opinion that there are
reasonable grounds for believing that the accused petitioner is not guilty of such
offence and he would not commit any offence while on bail.
17. Regarding non-furnishing of grounds of arrest, it is true that the notice
issued to the petitioner u/s 50 Cr.PC is silent regarding communication of the
grounds of arrest to him at the time of his arrest. However, in the arrest memo,
it is reflected that the grounds of arrest has been mentioned and communicated
to the petitioner at the time of his arrest which is reproduced as follows -
"In consequence of/connection with the recovery and seizure of
457 grams heroin in connection with this case u/s 43 of the
NDPS Act,1985, on 16.10.2023, at 23:25 pm at H.B Lodge, VIP
Road, 6 Mile, near Renault show-room, Guwahati, Assam, I
(Mahesh Prasad, Intelligence Officer , NCB, Guwahati Zonal
Unit, Guwahati) do hereby arrest Md. Faruk Khan U/s 42 of the
NDPS Act,1985. On 17.10.2023, at around 19:00 hours at the
office of NCB, Guwahati, Assam on reasonable belief/prima-facie
prove that the said seized goods/articles/documents are liable to
confiscation u/s 60 of NDPS Act,1985 and the aforesaid Md.
Faruk Khan is liable to proceedings u/s 8(c) R/W Section 21(c)
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and 29 of NDPS Act, 1985 for contravention of the Provisions of
the NDPS Act which have already been duly explained to him...."
18. It is seen that the arrest memo bears the signature of the accused/Faruk
Khan which transpires that he has knowledge regarding grounds of his arrest in
connection with NCB Crime Case No.17/2023. Under such backdrop, it cannot
be said that the Provisions of Article 21/22 of the Constitution of India have
been violated. Accordingly, the cited case law vide Prabir Purkayastha Vs.
State (NCT of Delhi) reported in 2024 SCC Online SC 934 and the recent
judgment of Vihaan Kumar vs. State of Haryana, reported in 2025 SCC Online
SC 269 are not applicable in the instant case.
19. In view of the aforesaid discussion and under the facts and circumstances
of the case, this court is not inclined to grant bail to the petitioner. Hence,
prayer for bail is rejected.
20. Accordingly, bail application stands disposed of.
JUDGE
Comparing Assistant
