Gauhati High Court
Page No.# 1/ vs The Union Of India on 23 July, 2025
Page No.# 1/10
GAHC010105742025
2025:GAU-AS:9431
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1614/2025
SRI MUNNA KUMAR SAHNI ALIAS MUNNA
S/O - BACHCHAN SAHNI, RESIDENT OF GRAM CHHAPRAR, P.O-
MILIKICHAK, P.S- BHADURPUR, CHHAPRAR, DIST- DHARBANGA, BIHAR,
PIN846009.
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, NARCOTICS CONTROL
BUREAU, GUWAHATI ZONAL UNIT, GUWAHATI.
Advocate for the Petitioner : MR. J HATIMURIA, MR. N M DAS,MR. M KALITA
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 23.07.2025
Heard Mr. M. Kalita, 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/ Union of India.
Page No.# 2/10
2. This is an application under Section 483 of BNSS, 2023 praying for grant of
bail to the accused/petitioner, who has been languishing in jail hajot in
connection with NDPS Case No. 03/2024, arising out of NCB Crime No. 14/2023,
under Section 8(c)/20(b)(ii)(C)/29 of NDPS Act, pending before the Court of
learned Special Judge, Rangia.
3. Case Diary has been received and I have perused the same.
4. It is submitted by Mr. Kalita, learned counsel for the petitioner, that the
present accused/petitioner is innocent and he is no way connected in the
alleged offence. Nothing has been seized from the conscious possession of the
present accused/petitioner. He was the driver of the vehicle and was not aware
about any loading of the contraband in the vehicle. However, he got arrested in
connection with this case on 13.08.2023 and for last 1 (one) year, 11 (eleven)
months & 10 (ten) days, he has been in custody. He further submitted that the
charge-sheet of the case was filed on 05.02.2024 and the charge was also
framed on 10.04.2024, but till date, out of 8 (eight) numbers of listed
witnesses, no witnesses could be examined by the learned Trial Court. He,
accordingly, submitted that there is no probability of completion of trial within
near future 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. The petitioner is a permanent resident of his
addressed locality and will regularly appear before the Court to contest the case
as and when the date is fixed by the Court. He also submitted that the co-
accused, who was also arrested in connection with this case, has already been
Page No.# 3/10
granted bail by this Court vide Order dated 09.05.2025, passed in Bail Appln.
No. 1217/2025, and hence, considering the case of the present petitioner on the
same footing, he may also be released on bail on the ground of parity.
5. In that context, Mr. Kalita, learned counsel for the petitioner, also relied on
the following decisions in support of his case:
(i) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
1109]
(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]
6. Mr. Kalita 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., which is mandatorily required and non-
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
13.08.2023 and was remanded for judicial custody on 14.08.2024, 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.
Page No.# 4/10
7. In this context also, Mr. Kalita, 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.
8. Mr. Kalita 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 as well as in the 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.
9. Ms. Deka, learned counsel appearing on behalf of the, learned Standing
Counsel for the NCB, submitted in this regard that a huge quantity of
contraband was recovered from the possession of the accused/petitioner. She
further submitted that in the voluntary statement made by the
accused/petitioner under Section 67 of the NDPS Act, the accused admitted his
involvement in trafficking the said contraband. The accused described in detail
Page No.# 5/10
how he was associated with the alleged offence, and it is also an admitted
position that he was caught red handed along with 1076.92 Kgs of Ganja.
Accordingly, she submitted that the recovery of the contraband was made from
the conscious possession of the accused/petitioner. Further she submitted that
the trial of the case has already commenced and out of 8 (eight) numbers of
witnesses, 1 (one) witness has already been examined by the Trial Court, and
therefore, she strongly opposed the grant of bail at this stage.
10. Ms. Deka further submitted that while dealing with a case of NDPS Act,
the object and purpose of the Act has to be considered and if such kind of
offender is allowed to go on bail, the very purpose and object of the Act itself
will be frustrated. In that context, she also relied on a decision of Hon’ble
Supreme Court passed in the case of Narcotics Control Bureau Vs. Kashif,
reported in 2024 0 Supreme(SC) 1264, and emphasized on paragraph No.
39 of the judgment, which reads as under:
“39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted keeping in mind
the scheme, object and purpose of the Act; as also the impact on the society as
a whole. It has to be interpreted literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear in mind the
provisions of Section 37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under the NDPS Act.
(iii) The purpose of insertion of Section 52A laying down the procedure for
disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure
the early disposal of the seized contraband drugs and substances. It was
inserted in 1989 as one of the measures to implement and to give effect to the
International Conventions on the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in
sub-section (1) thereof, and any lapse or delayed compliance thereof would be
merely a procedural irregularity which would neither entitle the accused to be
Page No.# 6/10
released on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been committed in
conducting the search and seizure during the course of investigation or
thereafter, would by itself not make the entire evidence collected during the
course of investigation, inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has been caused to
the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself would neither
vitiate the trial nor would entitle the accused to be released on bail. The Court
will have to consider other circumstances and the other primary evidence
collected during the course of investigation, as also the statutory presumption
permissible under Section 54 of the NDPS Act.”
11. She further relied on a decision of Hon’ble Apex Court passed in Criminal
Appeal Nos. 1001-1002 of 2022, arising out of Special Leave to
Appeal(Crl.) No. 6128-29 of 2021 (Narcotics Control Bureau Vs. Mohit
Aggarwal), wherein it has been held that if the Court is not satisfied that the
accused is not guilty of the offence alleged against him, the Court should not
allow the accused to go on bail. She further gives emphasized on paragraph No.
18 of the said judgment, which reads as under:
“18. In our opinion the narrow parameters of bail available under Section 37 of the
Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe
to conclude that the respondent has successfully demonstrated that there are
reasonable grounds to believe Criminal Appeal Nos. of 2022 @ Petitions for Special
Leave to Appeal (Criminal) No. 6128-6129 of 2021 that he is not guilty of the offence
alleged against him, for him to have been admitted to bail. The lengths of the period
of his custody or the fact that the charge-sheet has been filed and the trial has
commenced are by themselves not considerations that can be treated as persuasive
grounds for granting relief to the respondent under Section 37 of the NDPS Act.”
12. She further submitted that the Memorandum of Arrest contains detailed
information regarding the grounds of arrest and the offence committed by the
accused/petitioner. Therefore, according to her, there was full compliance with
the legal provisions while furnishing the Memorandum of Arrest. She also
Page No.# 7/10
submitted that Section 50 of the Cr.P.C. does not specifically require that the
grounds of arrest be communicated in detailed written form. She argued that
the Notice issued to the accused/ petitioner under Section 50 of the Cr.P.C.
reflects that proper intimation regarding the arrest was indeed given. More so,
she 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.
She further submitted that the present accused/petitioner is a habitual offender
and there are sufficient incriminating materials against him. Accordingly, she
raised objection to the bail application and submitted that this is not a fit case
for granting bail merely on the grounds of the prolonged period of incarceration
or the alleged non-communication of the grounds of arrest.
13. After hearing the submissions made by the learned counsel for both sides
and also on perusal of the Trial Court Record, it is seen that the I.O. has
collected sufficient incriminating materials against the present
accused/petitioner, who has been arrested in a case of commercial quantity. As
stated above, in a case of commercial quantity, rigor of Section 37 will follow
wherein the twin condition has to be satisfied before granting bail to an accused
person. But, from perusal of the case record, it is seen that there are sufficient
evidence against the present accused/ petitioner and accordingly, there cannot
be any reason to believe that the accused is not guilty of the offence and will
Page No.# 8/10
not repeat or commit the same offence while on bail.
14. Coming to the issue raised by the learned counsel for the petitioner in
regards to communication of grounds of arrest, it is seen that while issuing the
Arrest Memo as well as Notice under Section 50 Cr.P.C., 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 Arrest Memo as
well as Notice. 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.
15. Further from the Trial Court Record, it is seen that in the Memorandum of
Arrest issued to the accused/petitioner, though it mentions the recovery of the
contraband and also the prima facie case against the accused/petitioner, but it is
a fact that there is no specific mention or detailed description of the alleged
offence committed by the accused/petitioner. It is also an admitted position that
Section 8(c) of the NDPS Act encompasses various types of offences, but the
Memorandum fails to specify which particular aspect or sub-offence under
Section 8(c) is being invoked in the present case to attract the application of
Sections 20(b)(ii)(C) and 29 of the Act.
16. In view of the entire discussions made above, it is the opinion of this Court
that non-furnishing the grounds of arrest in the Arrest Memo as well as in the
Page No.# 9/10
Notice issued to the present accused/petitioner under Section 50 Cr.P.C. is in
clear violation of the mandate of Article 22(1) of the Constitution of India. Thus,
considering this aspect of the case and also considering the fact that the co-
accused person has already been granted bail by this Court vide Order dated
09.05.2025, passed in Bail Appln. No. 1217/2025, and further considering the
fact that the accused/petitioner has been in custody for last 1 (one) year, 11
(eleven) months & 10 (ten) days and till date, the prosecution could examine
only 1 (one) witness out of 8 (eight) numbers of witnesses, this Court find it a
fit case to extend the privilege of bail to the accused/petitioner.
17. 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, Rangia, the accused/petitioner, namely, Shri Munna Kumar Sahni
@ Munna, be enlarged on bail, subject to the following conditions:
(i) that the petitioner shall appear before the Court of learned Special
Judge, Rangia, on each and every date to be fixed by the Court;
(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, Rangia; and
Page No.# 10/10
(iv) that the petitioner shall not leave the jurisdiction of the learned
Special Judge, Rangia, without prior permission.
18. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant