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Gauhati High Court
Md Sabir Alias Md Shavir vs Union Of India on 15 July, 2025
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GAHC010117292025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1818/2025
MD SABIR ALIAS MD SHAVIR
S/O MOHAMMAD SIRAJUDDIN
R/O VILL- GOVINDPUR,
P.O. SADIPUR, P.S. AND BLOCK-PIRPAINTI, DIST. BHAGALPUR, BIHAR-
813209
VERSUS
UNION OF INDIA
REP BY THE STANDING COUNSEL, NCB
Advocate for the Petitioner : MR J K Bhuyan, MS. P GHOSH,MS B GOGOI
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 15.07.2025
1. Heard Mr. J. K. Bhuyan, learned counsel for the petitioner. Also heard Ms.
N. Kakati, learned counsel for the NCB.
2. This application under Section 483 of BNSS, 2023 has been filed by the
petitioner, namely, Md. Sabir @ Md. Shavir, who has been detained behind the
bars since 09.04.2023 (for last 2 year, 3 months and 6 days) in connection with
NDPS Case No. 151/2023 corresponding to NCB Case No. 07/2023 under
Sections 20(b)(ii)(c)/8(c)/25/29 of the NDPS Act, 1985 which is presently
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pending before the Court of the learned Special Judge, Kamrup(M).
3. The gist of the accusation in this case is that in the instant case the
NCB has filed a complaint before the Court of the learned Special Judge,
Kamrup(M), inter alia, alleging that on receipt of specific information through
reliable sources that the petitioner would be carrying huge quantity of ganja
from Tripura to Bihar in Truck No. NL-01-AA-5344, a search team was
constituted and the said truck was intercepted and searched. During search of
the aforesaid truck, the petitioner was found in the said truck and 67 packets of
ganja concealed in false cavity on the roof of the driver’s cabin were also
recovered there from. On weighing the recovered ganja, it was found that the
total weight of the same was 682 kg 200 grams.
4. The learned counsel for the petitioner has submitted that in this case
the final complaint was filed by the NCB on 27.09.2023 and 8(eight) witnesses
were enlisted therein. He submits that out of 8(eight) witnesses only 4(four)
witnesses have been examined and the last witness was examined on
24.02.2025 and since last 5(five) months no witness has been examined.
5. The learned counsel for the petitioner has submitted that the
petitioner is entitled to speedy trial and his prolonged incarceration has, in the
instant case, outweighed the embargo of Section 37 of the NDPS Act, 1985,
hence, he is entitled to get bail in this case. The learned counsel for the
petitioner has also submitted that in the instant case the constitutional mandate
of furnishing the grounds of arrest to the petitioner at the time of his arrest was
also not followed. He submits that though notice under Section 50 the Code of
Criminal Procedure was served on the petitioner at the time of his arrest,
however, same does not contain the grounds of arrest. He submits that on the
same grounds also the petitioner is entitled to get bail in this case.
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6. On the other hand, the learned counsel for NCB has opposed the grant
of bail to the petitioner on the ground that the quantity of ganja seized in this
case is of commercial quantity and, therefore, the embargo of Section 37 of the
NDPS Act is applicable to this case. She also submits that out of 8(eight) listed
witnesses 4(four) are already examined and only 4(four) witnesses are to be
examined and the next date of the trial is fixed on 7 th of August, 2025.
7. The learned counsel for NCB has also cited a ruling of the coordinate
bench of this court in the case of “Amir Khan and another Vs. Union of India“
(Bail Application No. 1448/2025). In said case, she submits that though Section
50 notice was silent regarding the communication of grounds of arrest to the
arrestee, however, the arrest memo reflected the grounds of arrest. She also
submits that in the instant case the communication sent to the family members
of the petitioner contains the grounds of arrest of the petitioner and in Section
50 notice the petitioner has also put his signature at the time of his arrest and,
therefore, there is a compliance of the mandatory requirement of furnishing the
grounds of arrest. She accordingly opposes the grant of bail to the petitioner.
8. I have considered the submissions made by the learned counsel for
both sides and have gone through the materials available on record.
9. In this case the petitioner has prayed for bail mainly on two counts
first one is the ground of prolonged incarceration i.e., he has been detained
behind the bars for last 2 year, 3 months and 6 days, however, the trial has not
yet culminated and out of eight listed prosecution witnesses only four witnesses
have been examined. It is also relevant that in spite of the fact that the
petitioner is behind the bars, in last five months not even a single witness have
been examined.
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10. It is now no longer res integra that prolonged incarceration violates the
fundamental rights of the detenu which were guaranteed to him under Article
21 of the Constitution of India. The Apex Court has observed several of its
rulings that prolonged incarceration overrides the embargo of Section 37 of the
NDPS Act, 1985.
11. Moreover, in this case, it appears that apart from prolonged
incarceration, the petitioner was not furnished with the grounds of arrest when
he was arrested on 09.04.2023. It appears from the record that though the
notice under Section 50 was served on the petitioner at the time of his arrest,
however, the said notice does not contain the basic facts which necessitated the
arrest of the petitioner. It only contains the case number and the penal provision
involved in this case which is not in the compliance of either the statutory
provision contained in Section 50 of the Cr.P.C. or the constitutional provision
contained in Article 22(1) of the Constitution of India.
12. The Apex Court in the case of the ” Vihaan Kumar Vs. State of Haryana”
reported in “(2025) SCC Online SC 269” has observed that furnishing grounds of
arrest in writing to an arrestee at the time of his arrest is a mandatory
requirement under Article 22(1) of the Constitution of India and non-compliance
of this constitutional mandate would render the arrest of an arrestee itself
vitiated and under such circumstances such an arrestee is entitled to get bail. In
the instant case also, there has been violation of the aforesaid constitutional
mandate.
13. In view of above discussion, the petitioner is entitled to get bail in this
case for violation of the fundamental rights of the petitioner guaranteed under
Article 21 and 22(1) of the Constitution of India.
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14. The above named petitioner is, accordingly, allowed to go on
Rs.1,00,000/- (Rupees One Lakh) only with two sureties of like amount, subject
to the satisfaction of the learned Special Judge, Kamrup(M) with following
conditions:-
i. That the petitioner shall co-operate in the trial of NDPS Case No.
151/2023, which is pending in the Court of the learned Special Judge,
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,
threat, 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 as well as,
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; andvi. That the petitioner shall not commit any offence while on bail.
15. With the above observations, this bail application is hereby disposed of.
JUDGE
Comparing Assistant
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