Gauhati High Court
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GAHC010135302025
2025:GAU-AS:9332
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2047/2025
KAILALSON KHANGSAI
S/O- THANGSAI KHANGSAI.
R/O- MORAPHAI, P.O. AND P.S.- CHUCHANDPUR, DIST.- CHUCHANDPUR,
STATE- MANIPUR
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR P SONOWAL, H. BORA,P P BORA
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
21.07.2025
Heard Mr. P. P. Bora, learned counsel for the petitioner. Also heard Mr. K.
Baishya, learned Additional Public Prosecutor for the State respondent.
2. This is an application under Section 483 of the BNSS, 2023 praying for grant of
bail to the accused/petitioner, who has been arrested in connection with NDPS Case
No. 158/2021, arising out of Sonapur P. S. Case No. 585/2021, under Sections
21(C)/24/29 of NDPS Act, pending before the Court of learned Additional District and
Sessions Judge No.2, Kamrup (M), Guwahati, Assam.
3. Scanned copy of the Trial Court Record has been received and I have perused
the same.
4. It is submitted by Mr. Bora, learned counsel for the petitioner, that the present
accused/petitioner is innocent and nothing has been seized from his conscious
possession. However, the present accused/petitioner was arrested on 28.08.2021 and
for last 3 (three) years, 10 (ten) months & 21 (twenty-one) days, he has been in
custody. The charge-sheet of the case has already been filed on 30.09.2021, but till
date, the prosecution could examine only 3 (three) witnesses out of 9 (nine) numbers
of listed witnesses and the last witness was examined on 23.08.2023 and therefore,
he submitted that considering the period of long incarceration, the petitioner may be
enlarged on bail.
5. Mr. Bora further submitted that the grounds of arrest were not communicated to
the present petitioner in the Arrest Memo as well as in the Notice under Section 50
Cr.P.C., corresponding to Section 47 of BNSS, which is mandatorily required and non-
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compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of
India. He further submitted that the accused/petitioner was arrested on 28.08.2021
and was remanded for judicial custody on the same day, but due to non-mentioning of
grounds of arrest in the Arrest Memo as well as in the Notice under Section 50 Cr.P.C.,
the arrest and the remand itself is illegal. He accordingly submitted that all the full
particulars of 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.
6. In this context also, Mr. Bora, learned counsel for the petitioner, cited the
following decisions:
(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC
OnLine SC 269.
(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024)
8 SCC 254.
7. Mr. Bora 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
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
Arrest Memo or Notice under Section 50 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.
8. In this regard, Mr. Bhaishya, learned Additional Public Prosecutor, submitted that
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there is sufficient incriminating material available against the accused/petitioner and
that the alleged contraband was recovered from his conscious possession. Therefore,
merely considering the length of detention undergone by the accused/petitioner and
the grounds of arrest, it cannot be said that there is any violation of Article 21 of the
Constitution of India, as submitted by the learned counsel for the petitioner. More so,
he submitted that the accused/petitioner belongs from the State of Manipur and there
is every probability of absconding or evading trial if he is enlarged on bail.
9. He further raised the issue that in the present case, the accused/petitioner along
with other co-accused were caught red handed along with the 1.324 Kg of heroin, and
thus, the ground of his arrest in connection with this case was well known to the
present accused/petitioner. More so, the grounds of arrest are already mentioned in
the Forwarding Report. He further submitted that the development of rule, i.e. no
person shall be detained without being informed the ground of arrest, has developed
from the case of Christie & Anr. Vs. Leachinsky (1947 1 ALL ER 567). He further
submitted that the case of Madhu Limaye Vs. State of Maharashtra, reported in
AIR 1969 SC 1014, is the first reported case regarding the furnishing of grounds of
arrest and violation of Article 22(1) of the Constitution of India, wherein also, the
Hon’ble Supreme Court has referred the decision of Viscount Simon in Christie
(supra). He accordingly submitted that in case of Madhu Limaye (supra), the
following observation was made:
“there is no need to explain the reasons of arrest if the arrested man is caught
red-handed and the crime is patent to high Heaven.”
10. Mr. Baishya, learned Additional Public Prosecutor, further submitted that the
mentioning of grounds of arrest in case of a person caught red handed was never
argued before the Hon’ble Supreme Court nor was pursued or considered by the
Hon’ble Supreme Court while passing the judgments in cases of Pankaj Bansal Vs.
Union of India, reported in (2024) 7 SCC 576; Prabir Purkayastha Vs. State
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(NCT of Delhi), reported in (2024) 8 SCC 254; and Vihaan Kumar Vs. State of
Haryana & Anr., reported in 2025 SCC OnLine SC 269. In those cases, the
Hon’ble Supreme Court has passed the judgments without considering the issue of
necessity of informing the grounds of arrest to a person caught red handed and thus,
applying the “doctrine of sub-silentio” it can be very well said that the judgments
passed by the Hon’ble Supreme Court in Pankaj Bansal (supra), Prabir
Purkayastha (supra) & Vihaan Kumar (supra) are not a precedent so far the cases
where the accused person got arrested red handed.
11. He further relied on the decision rendered by the Co-ordinate Bench in Bail
Application No. 1371/2025 dated 24.06.2025 [Ubaidur Rahman @ Ubaydur
Rahman vs. The State of Assam], wherein the case of Pankaj Bansal (supra)
was also considered. In paragraph 41 of the said order, it has been held that,
“henceforth,” the grounds of arrest must be communicated in writing to the accused,
the same would be applicable only after the said decision was made. Thus, the effect
of not writing down the grounds of arrest in the present case, in the view of this
court, cannot be a ground to release the petitioner on bail. Further, the subsequent
decisions of the Supreme Court in Prabir Purkayastha (supra) and Vihaan Kumar
(supra) have followed the judgment of Pankaj Bansal (supra). Thus, the
requirement of furnishing the grounds of arrest in writing prior to the decision in
Pankaj Bansal (supra) on 03.10.2023, cannot be a ground for granting bail to the
petitioner”.
12. Further, it is submitted by Mr. Baishya, that the charge was framed on
09.03.2022, and thereafter, the case was fixed for evidence. However, one of the co-
accused, who had been granted bail in connection with this case, defaulted in
appearing before the learned Special Judge, which resulted in a delay in recording the
evidence of the prosecution witnesses. Considering this aspect of the case, it cannot
be said that the present petitioner has undergone prolonged incarceration amounting
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to a violation of Article 21 of the Constitution of India. However, an order may be
passed directing the learned Trial Court to ensure the speedy disposal of the case.
13. Accordingly, the learned Additional Public Prosecutor submitted that the bail
prayer of the present petitioner cannot be considered at this stage on the ground of
incarceration as well as on the ground of non-furnishing of the ground of arrest to the
accused/petitioner. From the facts and circumstances of this case itself, it is sufficient
to hold that the petitioner was well aware about the grounds when he was caught red
handed along with the contraband. Accordingly, Mr. Baishya submitted that the bail
prayer of the present petitioner may be rejected.
14. Mr. Baishya also 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 and Case Diary, 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, he
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. I have considered the submissions made by the learned counsels for both sides
and have also perused the materials available on record, as well as the judgments
cited by the learned counsels. It is observed that two primary issues have been raised
in the present petition: (i) the non-communication of the grounds of arrest to the
accused/petitioner at the time of issuing notice under Section 50/50-A of the Cr.P.C.,
and (ii) the grounds of prolong incarceration.
16. From the case record, it appears that, as per the allegations, the contraband was
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recovered from the conscious possession of the accused/petitioner. Therefore, the
submissions made by the learned Additional Public Prosecutor regarding the accused’s
knowledge of the grounds of arrest cannot be overlooked. At the same time,
considering the observations made by the Co-ordinate Bench of this Court, it is noted
that prior to the decision in Pankaj Bansal (supra), there was no requirement for
written communication of the grounds of arrest. However, it is also seen that the
petitioner has been in custody for more than 3 (three) years, 10 (ten) months & 21
(twenty-one) days, and the last witness (P.W.3) was examined on 23.08.2023, and
despite the passage of more than 2 years, no further witnesses have been examined
by the learned Special Judge. But it also cannot be denied that the efforts have been
made by the learned Special Judge to procure the attendance of the witnesses.
17. Further, it is also an admitted position that the case is of commercial quantity
and hence, the rigor of Section 37 NDPS Act will follow.
18. For ready reference, Section 37 NDPS Act is extracted hereinbelow:
“37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of Criminal Procedure,
1973
(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.”
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19. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if
there is no reasonable ground for believing that accused are not guilty of such offence
and that they are not likely to commit any offence while on bail. But, from the
materials available in the case record, there cannot be any reasons to believe that the
accused/petitioners are not guilty of such offence or they are not likely to commit any
offence while on bail.
20. But, in the same time, it cannot be denied that the accused/petitioner is behind
the bar for last 3 (three) years, 10 (ten) months & 21 (twenty-one) days from the date
of his arrest and till date, the prosecution has been able to examine only 3 (three)
witnesses out of 9 (nine) numbers of listed witnesses and it also cannot be denied
that to examine the remaining witnesses, the prosecution may take a considerable
period for completion of the trial.
21. In the case of Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109], the Apex Court 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)9ii) of the NDPS Act.”
22. Further, in the case of Shariful Islam @ Sarif Vs. the State of West Bengal
[Special Leave to Appeal (Crl.) No. 4173/2022] also, the Apex Court had
considered the period of incarceration, i.e. 1 year 6 months, and the bail was granted.
23. In the instant case, as stated above, there are some materials available in the
case record and on the basis of which, the charge-sheet has been filed against the
present accused/petitioner showing his involvement in the alleged offence. But it is
also seen that in spite of filing of the charge-sheet in the year 2021, the prosecution
could examine only 3 (three) witnesses out of 9 (nine) numbers of listed witnesses,
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though it is a fact that the accused/petitioner is behind the bar for more than 3 (three)
years, 10 (ten) months & 21 (twenty-one) days.
24. In view of above and also considering the observations 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 3 (three)
years, 10 (ten) months & 21 (twenty-one) days may be considered as a ground for
bail with the conditional liberty considering the fundamental right guaranteed under
Article 21 of the Constitution and, therefore, I am inclined to grant bail to the present
accused/petitioner.
25. 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 Additional District &
Sessions Judge No.2, Kamrup(M), Guwahati, the accused, namely, Kailalson
Khangsai, be enlarged on bail, subject to the following conditions:
(i) that the accused shall appear before the Court of learned Additional
District & Sessions Judge No.2, Kamrup(M), Guwahati, on each and every
date to be fixed by the Court;
(ii) that the accused 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 accused shall submit his Aadhar Card and PAN Card before the
learned Addl. D & S Judge, Kamrup(M); and
(iv) that the accused shall not leave the jurisdiction of the learned Additional
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permission.
26. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant