Gauhati High Court
Page No.# 1/ vs The Union Of India on 21 April, 2025
Page No.# 1/11
GAHC010024342025
2025:GAU-AS:4739
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./355/2025
GOPAL CHANDRA RAI
S/O SHRI KARIKA CHANDRA ROY
RESIDENT OF MARWARI PATTY DIBRUGARH, DISTRICT DIBRUGARH
ASSAM, PIN 786001(TEMPORARY ADDRESS)
PERMANENT ADDRESS
RESIDENT OF DIKHLEM TILA
PO DAYANGMUKH, PS KHERONI
DIST. KARBI ANGLONG, ASSAM
PIN-732448
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, DIRECTORATE OF
REVENUE INTELLIGENCE (DRI)
Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO,S K DAS
Advocate for the Respondent : SC, DRI,
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BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
21.04.2025
1) Heard Mr. M. Biswas, the learned counsel for the petitioner. Also heard Mr. S.
C. Keyal, the learned Standing Counsel, DRI.
2) This application under Section 483 of BNSS, 2023 has been filed by the
petitioner, namely, Gopal Chandra Rai, who has been detained behind the
bars since 11.09.2022 (for more than 2 years and 7 months) in connection with
NDPS Case No. 35/2023, corresponding to DRI Case No. 13/2022 dated-
11.09.2022 under Sections 20(b)(ii)(C)/29 of the NDPS Act, 1985, pending
before the Court of learned Additional Sessions Judge No. 2, Kamrup (Metro).
3) The gist of accusation in this case is that on 10.09.2022, the Intelligence
Officer of Directorate of Revenue Intelligence, Guwahati received an information
through reliable sources that a 6 (six) wheeler TATA container Truck bearing
Registration No. NL-O1-AX-7084 was carrying huge quantity of Ganja, concealed
in secret cavities and the said vehicle is parked in a garage at Bishnupur, near
Nilachal Parking, Lalmati. In terms of the aforesaid information, a team of DRI
officials was constituted and the same reached the place where the said vehicle
was parked and the said vehicle was searched. On search of the said vehicle,
177 packets containing about 2004 kgs of suspected Cannabis (Ganja) was
recovered from the two cavities on the rooftop of the vehicle. Accordingly, DRI
Case No. 13/CX/NDPS/GANJA/DRI/CZU/2022-2023 dated-11.09.2022 was
registered and ultimately, after completion of the investigation, final complaint
was filed before the Court of the learned Sessions Judge, Kamrup (Metro), on
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the basis of which, NDPS Case No. 35/2023 was registered.
4) Sri M.Biswas, the learned counsel for the petitioner has submitted that the
petitioner was arrested on 11.09.2022 and the final complaint was filed on
10.03.2023. However, till date, only 3 (three) out of total 14 (fourteen)
prosecution witnesses have been examined.
5) The learned counsel for the petitioner has submitted that the petitioner is
entitled to get bail on the ground of prolonged incarceration as he has been
languishing behind the bars for more than 2 years and 7 months, without there
being much progress in the trial.
6) The learned counsel for the petitioner has also submitted that the petitioner
is also entitled to be released on bail on the ground that in this case, there has
been violation of the Constitutional Mandate of furnishing the grounds of arrest
to the petitioner at the time of his arrest. He submits that neither the mandate
of Section 50 of the Cr.P.C. nor Section 52 of the NDPS Act, 1985 has been
followed in this case.
7) The learned counsel for the petitioner further submits that the requirement
of law is that the grounds of arrest are to be furnished to the arrestee soon
after his arrest in writing and the same has to be distinguished for reasons for
arrest. However, the learned counsel for the petitioner submits that in this case,
the Arrest Memo which was served on the petitioner on 11.09.2022 at the time
of his arrest only mentions that the petitioner has been arrested for violating the
Provisions of Section 8(C) of the NDPS Act, 1985 and thereby, he has committed
offence punishable under Section 20(b)(ii)(C)/22/29 of the NDPS Act, 1985. The
learned counsel for the petitioner further submits in the facts of the case
narrated in the notice there is no accusation made against the present
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petitioner.
8) The learned counsel for the petitioner further submits that no basic facts,
which necessitated the arrest of the petitioner, in the instant case, were stated
in the said Arrest Memo. He further submits that the requirement of the
Constitutional Provisions of Article 22(1) is that at the time of his arrest, the
grounds of arrest is to be furnished to the petitioner in writing and any non-
compliance of the said Constitutional Mandate, will render the arrest illegal.
9) The learned counsel for the petitioner has further submitted that mere
stating the facts of the case, without there being any implicating statements
against the present petitioner in the facts so narrated and without stating all
such details which were in the hands of the Investigating Officer, which
necessitated the arrest of the petitioner would not satisfy the constitutional and
statutory requirement of furnishing the grounds of arrest in writing.
10) To substantiate his submission, the learned counsel for the petitioner has
cited a ruling of the Hon’ble Apex Court in the case of ” Prabir Purkayastha vs
State (NCT of Delhi),” reported in “(2024) 8 SCC 254.”
11) On the other hand, Mr. S. C. Keyal, the learned Standing Counsel, DRI has
vehemently opposed the grounds of bail of the petitioner in this case. He
submits that the quantity of contraband seized in this case is 2004 kgs, which is
a commercial quantity of Ganja and therefore, the embargo of Section 37 of the
NDPS Act, 1985 is applicable to this case.
12) He further submits that the ground of prolonged incarceration, as taken by
the petitioner in this case may not help the petitioner, as it was due to his fault
that the trial prolonged in this case. He cited the orders of the Trial Court from
the scanned copy of the Trial Court records to show that though the witnesses
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were present on one occasion, they could not be examined as the petitioner
was not having a counsel to defend himself in the trial and therefore, the
witnesses had to be sent back. It is only after appointing a Legal Aid Counsel
that 3 (three) of the witnesses were examined by the Trial Court.
13) He further submits that the remaining witnesses would also be examined
very soon and therefore, objects the release of the petitioner on the ground of
prolonged incarceration.
14) As regards the plea of not furnishing the grounds of arrest is concerned, Mr.
S. C. Keyal, the learned Standing Counsel, DRI submits that in the instance
case, the Arrest Memo which was served on the petitioner and which the
petitioner received after putting his signatures thereon, contains the grounds of
arrest as well as the facts, which necessitated his arrest in this case.
15) He also submits that the penal provision, which the petitioner is accused to
have contravened, have been specifically stated in the Arrest Memo as well as
the facts of the case, which shows the recovery of 2004 kgs of suspected Ganja
from the Truck, which was driven by the present petitioner as also stated in the
Arrest Memo and therefore, all basic facts which necessitated the arrest of the
present petitioner in this case have been mentioned in the Arrest Memo and
therefore, there is no violation of the Constitutional Mandate of Article 22(1) of
the Constitution of India as well as of Section 52 of the NDPS Act, 1985 and
Section 50 of the Cr.P.C. in this case.
16) I have considered the submissions made by the learned counsel for both
the sides and have gone through the scanned copy of the records of NDPS Case
No. 35/2023.
17) In this case, the petitioner has taken mainly two grounds for seeking bail-
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(i) Non-compliance of the Constitutional Mandate of furnishing the
grounds of arrest as provided under Article 22(1) of the Constitution of India, as
well as Section 52 of the NDPS Act, 1985 and Section 50 of the Code of Criminal
Procedure, 1973.
(ii) The second ground for bail taken by the petitioner is that of prolonged
incarceration.
18) As regards furnishing the grounds of arrest to an arrestee at the time of his
arrest, there is no dispute regarding the established Constitutional Mandate as
well as statutory requirement that such an arrestee has to be furnished with the
grounds of arrest at the time of his arrest.
19) The Apex Court has held in the case of “Prabir Purkayastha vs State
(NCT Of Delhi)” (supra) 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 as provided under Article 22(1) 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 the custody of
such an arrestee being rendered illegal, and on that ground he may not be
detained any further. The grounds of arrest as envisaged under the provisions of
the constitution as well as the NDPS Act, 1985 and the Code of Criminal
Procedure, 1973 requires furnishing the arrestee all such basic facts which
necessitated the arrest of such an arrestee.
20) In the instant case, though the arrest memo mentions about the recovery
of seized contraband from the Truck bearing Registration No. NL-O1-AX-7084,
however, in the said arrest memo, it has not been stated that the said Truck was
driven by the petitioner or that he was present in the said Truck.
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21) In the present case, the arrest memo levels an accusation against the
present petitioner contravening the provisions of Section 8(c) of the NDPS Act,
1985, however, it is not specifically stated therein, as to in what manner the said
provisions were contravened. Thus, though some facts were stated in the arrest
memo furnished to the present petitioner in the instant case, however, it is
cryptic in nature and no clear accusation narrating the basic facts necessitating
the arrest of the petitioner in the instant case has been mentioned in the arrest
memo.
22) As regards the plea of prolonged incarceration is concerned, the Supreme
Court of India in ” Mohd Muslim @ Hussain Vs. State (NCT of Delhi)”
reported in “2023 SCC Online SC 352” has observed 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″.
23) The Apex Court in “Rabi Prakash Vs. State of Orissa ” reported in
“2023 SCC Online SC 1109,” has observed 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.”
24) In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh“
reported in “2024 Live Law (SC) 416”, 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
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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.”
25) In this regard the observations made by the Apex Court in the case of
“Satender Kumar Antil Vs. Central Bureau of Investigation & Another“
reported in “AIR 2022 SC 3386” 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.
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
Page No.# 9/11Court 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
a few occasions, they shall make sure that
the accused does not suffer for the delay
occasioned due to no fault of his own.”
26) In the instant case, the petitioner has been detained behind the bars for
more than 2 years 07 months, however, till date only 3(three) out of total
14(fourteen) listed prosecution witnesses have been examined. The plea of the
learned Standing Counsel for DRI that the petitioner was at fault for the delay
as he failed to engage a counsel when the witnesses were present before the
Court is not acceptable under the facts and circumstances of the case. As in the
event of failure to engage a counsel by an accused due to reasons of poverty or
any other reasons, it is for the Trial Court to provide the assistance of legal aid
counsel to such an accused and his inability to engage a counsel may not be
regarded as a fault on the part of the petitioner.
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27) This Court is of considered opinion that in view of the observation made by
the Apex Court in the cases cited here in above, 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.
28) Under the facts and circumstances of this case, in the considered opinion of
this Court, the long incarceration of the petitioner has, in the instant case as
well, outweighed the embargo of Section 37 of the NDPS Act, 1985. Therefore,
he is entitled to get bail on the ground of the infringement of his fundamental
right guaranteed under Article 21 of the Constitution of India.
29) In view of the above, the petitioner, namely, Gopal Chandra Rai 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 Additional Sessions
Judge No. 2, Kamrup(M) with the following conditions:
i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No.
35/2023, which is pending in the Court of the learned Additional Sessions Judge
No. 2, Kamrup(M);
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,
Page No.# 11/11threat, 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;
vi. That the petitioner shall not commit any offence while on bail;
vii. That the petitioner shall appear before the Officer-in-Charge of Kheroni
Police Station once in every fortnight till the pendency of the Special (NDPS)
Case No. 35/2023;
viii. That any violation of the above conditions shall be a good ground for the
Trial Court to get the petitioner arrested and commit him to custody.
30) With the above observation, this bail application is accordingly, disposed of.
JUDGE
Comparing Assistant
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