Gauhati High Court
Page No.# 1/13 vs The Union Of India on 19 November, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010218562025
2025:GAU-AS:15781
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3213/2025
ATIKUR RAHMAN ALIAS ATIQUR RAHMAN ALIAS ATIKUR RAHAMAN
S/O MUKIBUR RAHMAN
R/O VILL- RAZABAZAR
P.O. KALITAKUCHI, P.S. HAJO
DIST. KAMRUP (R), ASSAM
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE SC, NCB
Advocate for the Petitioner : MR T H HAZARIKA, MR. D ROY,MR. K ISLAM,MR A
RASHID,MR M CHETIA
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 19.11.2025
Heard Mr. T.H. Hazarika, learned counsel for the petitioner. Also
heard Mr. S.C. Keyal, learned standing counsel for the NCB.
2) By this bail application filed under section 483 of the BNSS,
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2023, the petitioner, namely, Atikur Rahman @ Atiqur Rahman @ Atikur
Rahaman, who is in custody since his arrest on 19.12.2022 in connection with
NCB Crime No. 24/2022 and thus, has remained incarcerated for about 1056
days as on the date of this order, is praying for bail. The said case is being tried
before the Court of the learned Special Judge, Kamrup, Amingaon as NDPS Case
No. 23/2023 under sections 8(c), 20(b)(ii)(c), 21(C), 22(c) and 29 of the NDPS
Act, 1985.
3) As per the disclosure made in this bail application filed on
20.09.2025, this is the sixth bail application by the petitioner. The earlier bail
applications were disposed of as follows:-
a. B.A. No. 101/2023 was rejected by order dated 25.01.2023,
passed by this Court.
b. B.A. No. 1600/2023 was closed by order dated 16.06.2023,
passed by this Court on the submission made by the learned
counsel for the NCB that a final complaint had been filed by the
NCH before the Court of Special Judge, Kamrup, Amingaon, with
liberty to the petitioner to move the learned jurisdictional court
for bail.
c. The learned Trial Court had rejected the prayer for bail in NDPS
Case No. 23/2023 by order dated 03.08.2023.
d. B.A. No. 3343/2023, was rejected by this Court by order dated
16.02.2024.
e. B.A. No. 1291/2025 was closed on withdrawal by order dated
09.06.2025, passed by this Court.
4) The learned counsel for the petitioner has submitted that this
time, the prayer for bail has been made on three new grounds. Firstly, only 4
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(four) witnesses have been examined till today. Therefore, there is no possibility
of an early conclusion of trial. Secondly, a Coordinate Bench had granted bail to
a co-accused, namely, Monirul Islam, who was arrested on the same day and
therefore, he is praying for parity in the matter of grant of bail. Thirdly, there
was non-compliance of the provisions of Section 50 of the CrPC and therefore,
arrest memo cannot be construed as an alternative and/or equivalent to
furnishing of "grounds of arrest".
5) In support of his submissions, the learned counsel for the
petitioner has cited the following cases, viz., (i) Vihaan Kumar v. State of
Haryana & Anr., (2025) 5 SCC 799, (ii) Ashish Kakkar v. UT of Chandigarh,
(2025) 0 Supreme(SC) 1587, (iii) Sarju Chetry & Anr., v. The State of Assam,
B.A.3987/2023, decided on 10.04.2025, (iv) Azibur Rahman @ Aziz @ Ajibur v.
The State of Assam, B.A. 624/2025, decided on 02.05.2025 , (v) Sri Neizosetuo
Kire v. The State of Nagaland & Anr., decided on 11.04.2025 , (vi) Mohd. Muslim
@ Hussain v. State (NCT of Delhi), (2023) 18 SCC 166 , (vii) Supreme Court
Legal Aid Committee representing undertrial prisoners v. Union of India & Ors.,
(1994) 6 SCC 731.
6) The learned counsel for the respondent has opposed the prayer
for bail. It has been submitted that this Court, while rejecting the prayer for bail
by previous orders, had relied on many case citations. Therefore, apart from
those, he has cited the following cases, viz., (a) Jitul Ali v. The Union of India,
B.A. 1635/2025, (b) Union of India v. Namdeo Ashruba Nakade, Crl Appeal
__(number not provided) of 2025 [arising out of SLP (Crl.) No. 9792/2025],
decided on 07.11.2025, and (c) Union of India v. Vigin K. Varghese, 2025 Legal
Eagle (SC) 1176.
7) The order dated 16.02.2024, passed by this Court in Bail Appln.
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No. 3343/2023 contains the discussion and reasons why the Court was not
inclined to grant bail to the petitioner. Therefore, those discussions are not
repeated herein. Therefore, only the additional grounds on which the prayer for
bail made in this application has been examined.
Point regarding non-consideration of grounds of arrest:
8) The learned counsel for the respondent, by referring to the
additional affidavit filed by the respondent, has submitted that there was due
compliance of the requirement of Section 50 of the CrPC. The contents of the
Memorandum of Arrest dated 18.12.2022 in NCB Guwahati Crime No. 24/2022,
bearing Ref. No. 07/NCB/GZU/ND & PS-24/2022/ and the contents of notice
under Section 50 CrPC dated 18.12.2022, both in respect of the petitioner are
extracted hereinbelow for ready reference:
MEMORANDUM OF ARREST
Ref. No.07/NCB/GZU/ND & PS/24/2022/
In consequence of / connection with the recovery and seizure of 153.2 Kgs of
Ganja, 179 gms of Methamphetamine tablets , 1020 Kgs of Brown colour
substance suspected to be heroine and 16 bottles of Anrex - CP Codeine based
Cough Syrup under Section 42 of The Narcotic Drugs and Psychotropic Substances
Act, 1985 (as amended) on 17.12.2022 at 03:00 PM at H. no. B/71, Railway east
colony, Amingaon, Kamrup (R), Assam I do hereby arrest Atiqur Rahman @ Atikur
Rahman (35 years) S/o Mukibar Rahman, R/o Vill Razabazar, PO-Kalitakuchi, PS-
Hazo, Dist-Kamrup (R), Assam. 781102 under Section 42 of The Narcotic Drugs
and Psychotropic Substances Act, 1985 (as amended) on 18.12.2022 at 1920 hrs
at the office of Narcotics Control Bureau, Guwahati, Assam on reasonable belief/
prima facie proof that the said seized goods/ articles /documents are liable to
confiscation under Section 60 & 61 of The Narcotic Drugs and Psychotropic
Substances Act, 1985 (as amended) and the aforesaid Atiqur Rahman @ Atikur
Rahman is liable to proceedings under Section 8(c) read with u/s 20(b)(ii)(C),
21(c), 22(c) and 29 of the NDPS Act, 1985 (as amended) for contravention of the
Provisions of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as
amended) which have already been duly explained to his.
The aforesaid arrested person is being forwarded to the competent authority
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within twenty four hours hence for his remand to judicial/ jail custody.
Given under my hand and SEAL:
Signature with date.
Sd/- (Atikur Rahman)
18.12.2022
Name & Designation... sd/- (illegible)
18/12/2022
To,
Atiqur Rahman @ Atikur Rahman S/o Mukibar Rahman,
R/o: Vill Razabazar, PO-Kalitakuchi,
PS- Hazo, Dist-Kamrup (R), Assam. 781102
Intimation of arrest of Atiqur Rahman was given by him to his brother on his
mobile no. 8876792745 on 18/12/2022 after his arrest.
Sd/- (Illegible)
18/12/2022.
* * *
NOTICE U/S 50 Cr.P.C.
Shri/Smt. : Atiqur Rahman @ Atikur Rahman
S/o : Mukibur Rahman
Village : Razabazar
Post Office : Kalitakuchi
Police Station : Hazo
District : Kamrup (R)
State : Assam, 781102
Case No. : NCB Guwahati Case No.24/2022
U/S : 8(c)/20(b)(ii)(c)/ 22(c) & 29 of NDPS Act, 1985.
You are hereby informed that you are arrested in connection with the above
reference case and the case is non-bailable. So, you are forwarded to the Court.
You may submit petition before the Hon'ble Court for you bail.
Sd/- (Atikur Rahman) Signature (illegible)
18.12.2022 18/12/2022
Signature of Arrestee Signature of I.O.
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Anil Kushwaha
Intelligence Officer
Narcotic Control Bureau
Guwahati Zonal Unit, Guwahati
9) As per the contents of the charge-sheet, the contraband
narcotic drugs and psychotropic substances were recovered from House No.
B/71, Railway East Colony, Amingaon. The petitioner had arrived at the site at
that time. The petitioner is a former Home Guard and is allegedly stated to be
the driver of the vehicle of the owner of the contraband, who is also a co-
accused and is suspected to be actively involved in the trafficking of the
contraband narcotics. Moreover, from the contents of the memorandum of
arrest, the reasons for arresting the petitioner have been fully disclosed. Having
been arrested from the site where the contraband was recovered, it is not
believable that the petitioner had no knowledge why he was arrested.
10) At this juncture, it would be relevant to quote the provisions of
Section 50 of the CrPC as well as Section 47 of the BNSS, 2023.
"CrPC
50. Person arrested to be informed of grounds of arrest and of right to bail.-
(1) Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is
arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is
entitled to be released on bail and that he may arrange for sureties on his behalf.
BNSS.
47. Person arrested to be informed of grounds of arrest and of right to bail-
(1) Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is
arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is
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entitled to be released on bail and that he may arrange for sureties on his behalf."
11) Therefore, from Section 47(1) of BNSS, 2023, the requirement of
law is that on arresting a person without warrant, every police officer or other
person arresting any person without warrant is required to communicate to him
full particulars of the offence for which he is arrested, "or other grounds for
such arrest". The same is also prescribed in Section 50 of the CrPC.
12) Therefore, though the learned counsel for the petitioner has
made a very strenuous argument to impress upon the Court that non-furnishing
of the ground of arrest would be fatal and has supported his submission with
several case citations, but in this case, the contents of the memorandum of
arrest is specific to the petitioner and gives the description of the offence for
which he has been arrested, and it also contains the sections of law based on
which the petitioner has been arrested. Thus, from the contents of the
memorandum of arrest, as extracted hereinbefore, the Court is of the
considered opinion that the said document contains " the full particulars of the
offence for which he is arrested", which is in full compliance of the provisions of
section 50 Cr.P.C., which is nearly para materia to the provision of Section 47(1)
of the BNSS, 2023. The same is also found to be in compliance of Section 52(1)
of the NDPS Act, 1985.
13) As per the provision of Section 50(1) of CrPC and Section 47(1)
of the BNSS, 2023, which have been quoted hereinbefore, the requirement of
law under both the provisions is that the arresting officer is required to
communicate to the arrested person "full particulars of the offence for which he
is arrested" "or other grounds for such arrest". The use of word "or" cannot be
interpreted under any cannons of interpretation of statute to be read as " and"
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so as to mean that not only the arrested person is required to be communicated
(a) full particulars of the offence for which he is arrested; "and" (b) to also
communicate to the petitioner the ground of arrest.
14) In this regard, the Court is of the considered opinion that the
words of statutory provision must be understood and read in its plain and
ordinary meaning, which is the golden rule of interpretation. Therefore, the use
of word "or" in between "communicate to him full particulars of the offence for
which he is arrested" and "other grounds for such arrest" must be interpreted
that communication of either of the two would be sufficient and/ or that
"grounds of arrest" is inter changeably used with communication of "full
particulars of the offence", as appears in the provisions of Section 50(1) of the
CrPC; Section 47(1) of the BNSS, 2023.
15) Section 52(1) of the NDPS Act is quoted below:
"52. Disposal of persons arrested and articles seized.-
(1) Any officer arresting a person under section 41, section 42, section 43 or
section 44 shall, as soon as may be, inform him of the grounds for such arrest . "
16) Thus, from a perusal of the above quoted provisions of Section
52 of the NDPS Act, it appears that in a departure from Section 50(1) CrPC and
Section 47(1) of the BNSS, 2023, the requirement under sub-Section (1) of
Section 52 of the NDPS Act is that any officer arresting a person under Section
41 to 44 of the said Act is required to inform the arrested person of the
"grounds for such arrest". It is well settled that special law shall prevail over
general law. In this case, a "memorandum of arrest" was provided to the
petitioner on 18.12.2022, which is quoted hereinbefore. The same amounts to
informing the petitioner of the "grounds for such arrest". Accordingly, the Court
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is of the considered opinion that from the contents of the memorandum of
arrest which is extracted hereinbefore, there is due compliance of
communicating to the petitioner the "grounds of his arrest".
17) Thus, in light of the discussions above, the Court is of the
considered opinion that by providing the petitioner the memorandum of arrest
on 18.12.2022, the petitioner has been communicated the "grounds of his
arrest", which contains the description of huge quantity of drugs and
psychotropic substances seized, the provisions of law contravened by the
petitioner for which he was arrested. The said memorandum of arrest is specific
to the petitioner. Therefore, the cases cited by the learned counsel for the
petitioner do not come to the aid of the petitioner.
18) In the case of Ashish Kakkar (supra), the Supreme Court of India
has held that the arrest memo cannot be construed as grounds of arrest as no
other worthwhile particulars have been furnished to him and on the facts of the
said case, it was held that there was non-compliance of Section 50 of the CrPC.
In the present case in hand, the facts are distinguishable as the contents of the
memorandum of arrest read with notice under section 50 CrPC gives a
comprehensive description to the reasons why the petitioner was arrested.
Therefore, the case of Ashish Kakkar (supra) does not come to the aid of the
petitioner in light of the discussions in the forgoing paragraphs.
19) The petitioner was arrested from site where the contraband was
recovered. Therefore, it is not believable that the petitioner had no knowledge
why he was arrested. Moreover, as the detailed Memorandum of Arrest and
Notice under Section 50 CrPC was served to the petitioner on 18.12.2022, the
date on which he was arrested, the Court is of the considered opinion that the
ratio laid down in the case of Vihaan Kumar (supra) has been scrupulously
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followed by the arresting authority. Therefore, the cases of Sarju Chetry & Anr.
(supra), Azibur Rahman @ Aziz @ Ajibur (supra), Sri Neizosetuo Kire (supra),
which were passed following the decision rendered by the Supreme Court of
India in the case of Vihaan Kumar (supra) do not come to the aid of the
petitioner under the distinguishable facts of the case.
20) The point regarding non-furnishing of the grounds of arrest is
answered in the negative and against the petitioner.
21) On the issue of delay in trial, from the materials available on
record, the Court is unable to record its satisfaction that the petitioner is not
guilty of the offence or that if released on bail he would repeat the offence.
However, at this stage of considering the prayer for bail, it is not the prescription
of law to hold a mini trial and to examine the evidence and to hold that the trial
so far did not disclose sufficient material to convict the petitioner. Therefore,
such an exercise has not been done. However, on considering the decision of
the Supreme Court of India in the case of Narcotics Control Bureau v. Mohit
Aggarwal, AIR 2022 SC 3444, where the provisions of Section 37 of the NDPS
Act, 1985 with relation to "reasonable grounds" was examined, the Court is of
the considered opinion that the decision of the Two Judge Bench in the case of
Mohd. Muslim @ Hussain (supra), cited by the learned counsel for the petitioner
would not help the petitioner. In the order dated 16.02.2024, passed in B.A.
3343/2023, while rejecting the prayer for bail in respect of the petitioner a
detailed discussion has been made in this regard, by considering the cases of
Mohit Aggarwal (supra), Section 436-A CrPC, Satender Kumar Antil v. Central
Bureau of Investigation, AIR 2022 SC 3386 . The same discussion, in reference
to the petitioner, would be repetitive and therefore, this order is not burdened
with the same discussion.
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22) The point of parity, urged by the learned counsel for the
petitioner is now taken up for consideration. In this regard, the learned counsel
for the petitioner has placed reliance on the order dated 15.05.2025, passed by
a coordinate Bench of this Court in Bail. Appln. No. 1352/2025 - Monirul Islam
v. the Union of India, represented by SC, NCB. In the said case, the petitioner
therein is a co-accused in NCB Case No. 24/2022. The present petitioner,
namely, Atikur Rahman @ Atiqur Rahman @ Atikur Rahaman is also a co-
accused in NCB Crime No. 24/2022, corresponding to NDPS Case No. 23/2023,
being tried by the learned Special Judge, Kamrup, Amingaon. It may be clarified
that the same Court is also the Court of District & Sessions Judge, Kamrup,
Amingaon. Therefore, in the considered opinion of the Court, in terms of the
judgment and order dated 07.02.2025, passed by the Supreme Court of India in
WP(Crl.) No. 55/2025 - Shekhar Prasad Mahto @ Shekhar Kushwaha v. the
Registrar General Jharkhand High Court & Anr. as well as judgment and order
dated 31.07.2023 passed by the Supreme Court of India in SLP(Crl.) No.
7203/2023 (three Judges Bench) and judgment and order dated 12.12.2023
passed in SLP(Crl.) No. 1558/2023, bail matters arising out of the same FIR
were required to be placed before the learned Judge, who had initially heard the
bail application of one of the accused. In this case, this Court had taken up the
application of the petitioner for bail and the prayer for bail was rejected by order
dated 25.01.2023, passed in Bail Appln. No. 101/2023, this Court, in light of the
decision of the Supreme Court of India, referred above with utmost respect and
regard to the order cited, this Court would not be bound by the subsequent bail
order by a coordinate Bench on 15.05.2025, passed in Bail Appln. No.
1352/2025. Therefore, under the unique facts of this case, where bail was
obtained without bringing it to the notice of the Court that bail application of a
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co-accused arising out of the same FIR was earlier heard and decided by this
Bench, the principle of parity in the matter of bail cannot applied in respect of
the petitioner.
23) As stated above, the new grounds on which this bail application
has been prayed for were (a) only 4 (four) witnesses have been examined till
today and therefore, there is no possibility of an early conclusion of trial; (b) a
Coordinate Bench had granted bail to a co-accused, namely, Monirul Islam, for
which parity in the matter of grant of bail was urged; and (c) there was non-
compliance of the provisions of Section 50 of the CrPC. All these three points
urged by the learned counsel for the petitioner has been dealt with in this order.
The submissions, though strenuously made, are not found to entitle the
petitioner for being released on bail at this stage.
24) It may further be stated that the learned counsel for the
petitioner had also submitted that in view of the long incarceration of the
petitioner and in view of non-furnishing of the grounds of arrest, the rigours of
section 37 of the NDPS Act would not come in the way of this Court to consider
the prayer for grant of bail. In this regard, it may be mentioned that the
Supreme Court of India in the case of Vigin K. Varghese (supra), cited by the
learned standing counsel for the respondent, has held to the effect that offences
involving commercial quantity of narcotics have a specific statutory embargo on
bail and obligates the Court to record satisfaction on the three requirements of
section 37 in addition to the ordinary test under CrPC. Paragraph 18, 19 and 20
thereof are quoted below-
"18. This Court ordinarily shows deference to the discretion exercised by the High
Court while considering the grant of bail. However, offences involving commercial
quantity of narcotic drugs stand on a distinct statutory footing. Section 37 enacts a
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specific embargo on the grant of bail and obligates the Court to record satisfaction
on the twin requirements noticed above, in addition to the ordinary tests under the
Code of Criminal Procedure.
19. In the present case, the High Court has not undertaken the analysis of those
twin requirements with reference to the material placed by the prosecution. The
orders dated 22.01.2025 and 12.03.2025 do not advert to the allegation regarding
the respondent's prior involvement in a seizure of narcotic drugs and psychotropic
substances only days prior to the seizure forming the subject matter of the present
complaint, nor do they engage with the prosecution's assertion as to the
respondent's role in arranging, importing, clearing and supervising the
consignments. The omission to consider these factors bears directly upon the
statutory satisfaction required by Section 37(1)(b).
20. We are of the view that, in the facts of this case, it would not be appropriate
for this Court at the threshold stage itself to render findings on whether there are
or not reasonable grounds, for believing that the respondent is not guilty, or on
whether he is likely to commit any offence while on bail. That factual assessment,
which the statute requires to be made and recorded with reasons, is one that the
High Court must undertake upon a complete and fair appraisal of the rival
contentions based on materials placed before it."
25) In the result, in light of the ratio of the case of Satender Kumar
Antil (supra), the petitioner is not found entitled to be released on bail at this
stage.
26) Accordingly, the prayer for bail stands rejected and this
application stands dismissed.
JUDGE
Comparing Assistant
