Gauhati High Court
Page No.# 1/13 vs Narcotic Control Bureua on 30 June, 2025
Page No.# 1/13
GAHC010040632025
2025:GAU-AS:8884
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./565/2025
MD ASHIMUDDIN BANIA
S/O GOHER ALI BANIA
R/O VILL-GORAIMARI,P.O. BIJNI
DIST.BONGAIGAON, ASSAM- 783390.
VERSUS
NARCOTIC CONTROL BUREUA
REPRESENTED INTELLIGENT OFFICER, GUWAHATI ZONAL UNIT,
GUWAHATI.
Advocate for the Petitioner : MR. N J DUTTA, IMDADUL ISLAM,M RAHMAN,MR A
BASUMATARY,MR. M M ZAMAN,MR N AHMED
Advocate for the Respondent : SC, NCB,
Page No.# 2/13
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
30.06.2025
Heard Mr. N. J. Dutta, learned counsel for the petitioner. Also heard Ms. M.
Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing
Counsel, NCB for the respondent.
2. This is an application under Section 483 of BNSS, 2023 praying for grant of
bail to the accused/petitioner, who has been arrested in connection with NCB
Case No. 161/2022, registered under Sections 20(b)(ii)(C)/29 of NDPS Act, 1985
arising out of NCB Crime No. 02/2022 which is pending before the Court of
learned Additional Sessions Judge No.2, Kamrup (M), Guwahati.
3. Scanned copy of the TCR as called for, has already been received and I
have perused the same.
4. It is submitted by Mr. Dutta, learned counsel for the petitioner, that the
present accused/petitioner is innocent and nothing has been seized from his
conscious possession. He has been arrested in connection with this case only on
the basis of the statement of the co-accused recorded under Section 67 of NDPS
Act. However, it is the settled position that the statement of the co-accused or
the voluntary statement recorded under Section 67 of the NDPS Act is not
admissible at the time of trial or that cannot be the basis for conviction as laid
down by the Hon’ble Apex Court in the case of Tofan Singh Vs. State of
Tamil Nadu [(2021) 4 SCC 1], wherein it has been held that the statement
of the co-accused person recorded under Section 67 NDPS Act is not tenable in
the eye of law and it cannot be the basis of the conviction.
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5. The petitioner got arrested on 11.01.2022 and since last 3 (three) years
and 5 (five) months, he has been in custody. The charge-sheet was filed on
07.07.2022, but till date, the prosecutor could examine only 4 (four) witnesses
out of 10 (ten) numbers of listed witnesses and there is no probability of
completion of trial within a short period as lots of witnesses are yet to be
examined by the prosecution and therefore he submitted that considering the
period of long incarceration, the petitioner may be enlarged on bail.
6. In that context, Mr. Dutta also relied on following decisions:
(i) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022
SCC OnLine SC 2068]
(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order
dated 01.08.2022 in SLP Crl. No. 4173/2022]
(iii) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023
SCC OnLine SC 352]
(iv) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109]
(v) Md. Salman Hanif Shaikh Vs. State of Gujarat [SLA Criminal
No. 5530/2022, decided on 22.08.2022]
7. Mr. Dutta further submitted that the grounds of arrest were also not
mentioned in the Notices issued to the present petitioner under Section 50/50A
of Cr. P.C. corresponding to Sections 47/48 of BNSS, which is mandatorily
required and non-compliance of the same is in violation of Articles 21 & 22(1) of
the Constitution of India. He accordingly submitted that all the full particulars of
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the offence, which is alleged to have been committed by the accused, should be
informed to him at the time of his arrest and otherwise it would be against the
mandate of the Constitution of India as well as the statutory provisions which
would vitiate the arrest itself. In this context also, Mr. Dutta, learned counsel for
the petitioner, relied on a decision of Hon’ble Supreme Court passed in the case
of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC
269.
8. Mr. Dutta further relied on another decision of Hon’ble Supreme Court
passed in the case of Directorate of Enforcement Vs. Subhash Sharma,
reported in (2025) SCC Online SC 240, wherein it has been held as under:
“Once a court, while dealing with a bail application, finds that the
fundamental rights of the accused under Articles 21 and 22 of the
Constitution of India have been violated while arresting the accused or
after arresting him, it is the duty of the Court dealing with the bail
application to release the accused on bail. The reason is that the arrest in
such cases stands vitiated. It is the duty of the every Court to uphold the
fundamental rights guaranteed under Articles 21 and 22 of the
Constitution. Therefore, when the arrest is illegal or vitiated, bail cannot
be denied on the grounds of non-fulfillment of twin tests under clause (ii)
of sub-section 1 of Section 45 of PMLA.”
9. Mr. Dutta also raises the ground of parity, stating that the co-accused has
already been granted bail in connection with this case.
10. He also submitted that though in the case of commercial quantity, the
rigor of Section 37 NDPS Act follows, but in cases where there is violation of the
Page No.# 5/13
constitutional provision as mandated under Articles 21 & 22 of the Constitution
of India, the statutory restriction will not affect the power of the Court to grant
bail in such circumstances. More so, non-mentioning of grounds of arrest while
issuing the Notices under Section 50/50A of Cr. P.C. is itself in violation of Article
22(1) of the Constitution of India and hence, without even going into the detail
of the merit of the case, the present petitioner is entitled to bail.
11. In this regard, Ms. Deka, learned counsel appearing on behalf of the NCB,
has submitted that the ground of parity is not applicable in the present case, as
3,071.16 kgs of suspected Ganja was recovered directly from the
accused/petitioner, whereas it was not recovered from the conscious possession
of the co-accused. She further submitted that the seizing officer appeared
before the Court on two occasions, but due to the absence of the learned
defence counsel, he could not be examined. Additionally, she submitted that out
of the 10 listed witnesses, only 4 have been examined to date. Therefore, she
argued that this is not at all a fit case for granting bail to the accused/petitioner
merely on the ground of the length of detention. She also submitted that there
may not be any written communication for grounds of arrest, but from the
materials available in the case record, it is very much evident that the accused
was informed about the grounds of arrest orally during investigation and hence,
she raised objection in granting bail to the accused/ petitioner.
12. She further relied on the decision passed by the Hon’ble Supreme Court in
the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav &
Anr., reported in 2005 (0) Supreme (SC) 104, and specifically emphasized
paragraph 17 of the said judgment, which reads as under:
“17. It is trite law that personal liberty cannot be taken away
Page No.# 6/13except in accordance with the proceeding established by law. Personal
liberty is a constitutional guarantee. However, Article 21 which guarantees
the right also contemplates deprivation of personal liberty by procedure
established by law. Under the criminal laws of this country, 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 questioned as being
violative of Article 21 since the same is authorized by law. But even
persons accused of non bailable offences are entitled for bail if the court
concerned comes to the conclusions that the prosecution has failed to
establish a prima facie case against him and/or if the court is satisfied for
reasons to be recorded that in spite of the existence of prima facie case
there is a need to release such persons on bail where fact situations,
require it to do so. In that process a person whose application for
enlargement on bail is once rejected is not precluded from filing a
subsequent application for grant of bail if there is a change in the fact
situations. In such cases if the circumstances then prevailing requires that
such persons to be released on bail, in spite of his earlier application
being rejected, the Courts can do so.”
13. She further submitted relying on the decision rendered by the Hon’ble
Supreme Court in SLP (Crl.) Diary No. 22702 of 2020, decided on 10.01.2022,
wherein it was held that the ground of parity cannot be considered if the footing
of the cases is entirely different. She relied specifically on paragraph 11 of the
said judgment.
14. Ms. Kakati further submitted that the case is of commercial in nature and
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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 annexure annexed in the petition,
it cannot be said that the present petitioner is innocent, he has not committed
such offence nor there is any probability of committing similar kind of offence if
he is 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/petitioner on bail at this stage.
15. 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 Notices issued to the present
accused/petitioner under Section 50/50A of Cr.P.C. It is accordingly seen that
while issuing the said the Notice, though the name and the address of the
accused/petitioner along with the case number as well as the Sections under
which he was arrested are being mentioned, but admittedly there is no mention
about the grounds of arrest in the in the Notice as well as the Arrest Memo.
Thus, it is the admitted position that the grounds of arrest were not intimated to
the accused/petitioner or to his family members at the time of his arrest which
is a statutory right of an accused and it is also a constitutional mandate that the
person should be intimated regarding the grounds of arrest under which he was
taken into custody of police.
16. It is the contention of the petitioner that non-communication of the
grounds of arrest is in violation of Section 50/50A of Cr.P.C., rendering the arrest
and subsequent remand of the accused/petitioner invalid. The
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accused/petitioner has the fundamental and statutory right to be informed
about the grounds of arrest in writing and copy of such written ground of arrest
have to be furnished to the arrested person as a matter of course and without
any explanation. Non-supply of written grounds of arrest to the arrested
accused/petitioner would vitiate the arrest even if the case has been charge-
sheeted.
17. The Hon’ble Apex Court in the case of Prabir Purkayastha Vs. State
(NCT of Delhi), reported in (2024) 8 SCC 254 (supra), has held in paragraph
Nos. 19, 21 & 48 of the judgment as under:
“19. Resultantly, there is no doubt in the mind of the Court that any
person arrested for allegation of commission of offences under the
provisions of UAPA or for that matter any other offence(s) has a
fundamental and a 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. The purpose of informing to the arrested person
the grounds of arrest is salutary and sacrosanct inasmuch as, this
information would be the only effective means for the arrested person to
consult his Advocate; oppose the police custody remand and to seek bail.
Any other interpretation would tantamount to diluting the sanctity of
the fundamental right guaranteed under Article 22(1) of the Constitution
of India.
21. The right to be informed about the grounds of arrest flows
from Article 22(1) of the Constitution of India and any infringement of this
fundamental right would vitiate the process of arrest and remand. Mere
Page No.# 9/13fact that a charge sheet has been filed in the matter, would not validate
the illegality and the unconstitutionality 3 (2000) 8 SCC 590committed at
the time of arresting the accused and the grant of initial police custody
remand to the accused.
48. It may be reiterated at the cost of repetition that there is a significant
difference in the phrase ‘reasons for arrest’ and ‘grounds of arrest’. The
‘reasons for arrest’ as indicated in the arrest memo are purely formal
parameters, viz., to prevent the accused person from committing any
further offence; for proper investigation of the offence; to prevent the
accused person from causing the evidence of the offence to disappear or
tempering with such evidence in any manner; to prevent the arrested
person for making 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 the Investigating Officer. These
reasons would commonly apply to any person arrested on charge of a
crime whereas the ‘grounds of arrest’ would be required to contain all
such details in hand of the Investigating Officer which necessitated the
arrest of the accused. Simultaneously, the grounds of arrest informed in
writing must convey to the arrested accused all basic facts on which he
was being arrested so as to provide him an opportunity of defending
himself against custodial remand and to seek bail. Thus, the ‘grounds of
arrest’ would invariably be personal to the accused and cannot be equated
with the ‘reasons of arrest’ which are general in nature.”
18. Further, in the case of Vihaan Kumar (supra), the Hon’ble Apex Court
has held has under:
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“14. Thus, the requirement of informing the person arrested of the
grounds of arrest is not a formality but a mandatory constitutional
requirement. Article 22 is included in Part III of the Constitution under the
heading of Fundamental Rights. Thus, it is the fundamental right of every
person arrested and detained in custody to be informed of the grounds of
arrest as soon as possible. If the grounds of arrest are not informed as
soon as may be after the arrest, it would amount to a violation of the
fundamental right of the arrestee guaranteed under Article 22(1). It will
also amount to depriving the arrestee of his liberty. The reason is that, as
provided in Article 21, no person can be deprived of his liberty except in
accordance with the procedure established by law. The procedure
established by law also includes what is provided in Article
22(1). Therefore, when a person is arrested without a warrant, and the
grounds of arrest are not informed to him, as soon as may be, after the
arrest, it will amount to a violation of his fundamental right guaranteed
under Article 21 as well. In a given case, if the mandate of Article 22 is
not followed while arresting a person or after arresting a person, it will
also violate fundamental right to liberty guaranteed under Article 21, and
the arrest will be rendered illegal. On the failure to comply with the
requirement of informing grounds of arrest as soon as may be after the
arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the
person arrested cannot remain in custody even for a second.”
19. In the instant case also, as discussed above, it is seen that there is no
mention of grounds of arrest in the Notices issued to the present
accused/petitioner under Section 50/50A of Cr.P.C. and except the name,
address and the case numbers, there is no mention about any other particulars
Page No.# 11/13
of the offence as well as the grounds of arrest. So, from the proviso of Section
50/50A of Cr.P.C., it is seen that there is clear violation of mandate of Article
22(1) of the Constitution of India and in such cases, in spite of the statutory
restrictions under Section 37 of the NDPS Act, this Court is of the considered
opinion that for the violation of the constitution mandate contained under Article
22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it
may be a sufficient ground to consider his bail application in spite of rigor of
Section 37 of the NDPS Act which provides the restriction in granting bail in the
cases of commercial quantity under the NDPS Act.
20. More so, the Hon’ble Supreme Court in the case of Vihaan Kumar
(supra) has also held that even after filing of the charge-sheet, the arrest and
the detention will be considered as unconstitutional being violative of Articles 21
& 22(1) of the Constitution of India. The Hon’ble Supreme Court in paragraph
No. 16 of the said judgment has held as under:
“16. An attempt was made by learned senior counsel appearing for 1st
respondent to argue that after his arrest, the appellant was repeatedly
remanded to custody, and now a chargesheet has been filed. His
submission is that now, the custody of the appellant is pursuant to the
order taking cognizance passed on the charge sheet. Accepting such
arguments, with great respect to the learned senior counsel, will amount
to completely nullifying Articles 21 and 22(1) of the Constitution. Once it
is held that arrest is unconstitutional due to violation of Article 22(1), the
arrest itself is vitiated. Therefore, continued custody of such a person
based on orders of remand is also vitiated. Filing a charge sheet and order
of cognizance will not validate an arrest which is per se unconstitutional,
Page No.# 12/13being violative of Articles 21 and 22(1) of the Constitution of India. We
cannot tinker with the most important safeguards provided under Article
22.”
21. In the same time, it also cannot be denied that the accused/petitioner is
behind the bar for more than 3 (three) years and 5 (five) months from the date
of his arrest and till date, the prosecution could examine only 4 (four) witnesses
out of 10 (ten) numbers of listed witnesses, though the charge-sheet was filed
in the year 2022 and it also cannot be denied that the prosecution may take
considerable time for examining the other witnesses.
22. In view of the entire facts and circumstances, as discussed above, viz-a-viz
non-mentioning of grounds of arrest in the Arrest Memo as well as in Notice
issued to the present accused/petitioner under Section 50/50A of Cr.P.C., and
also considering the period of incarceration already undergone by the
accused/petitioner, i.e. more than 3 (three) years and 5 (five) months, as well
as the considering the view expressed by the Hon’ble Supreme Court in the case
laws referred to hereinabove, this Court find it a fit case to extend the privilege
of bail to the accused/petitioner.
23. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-
(Rupees fifty thousand) only 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, Kamrup (M), Guwahati, the accused/petitioner, namely, Md.
Ashimuddin Bania, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, Kamrup (M), on each and every date to be fixed by the
Page No.# 13/13Court;
(ii) that the petitioner 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;
(iii) that the petitioner shall submit his Aadhar Card and PAN Card
before the learned Special Judge, Kamrup (M); and
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, Kamrup (M), Guwahati, without prior permission.
24. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant