Page No.# 1/8 GAHC010078692025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1201/2025 PRADIP BISWAS (DRIVER) AND ANR SON OF LATE KANU BISWAS , RESIDENT OF JAGANNATH PARA, P.O. AND P.S. RAJNAGAR, BILONIA, DIST. SOUTH TRIPURA, TRIPURA, PIN-799150 2: MINTU CHOUDHURY (CO- DRIVER) SON OF SANKARA CHOUDHURY RESIDENT OF VILLAGE JAGANNATH PARA BAIGURA BILONIA SOUTH TRIPURA PIN-79915 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR OF ASSAM Advocate for the Petitioner : MR SISHIR DUTTA, MS K BORAH,MR P BORA,MR. S DUTTA,MS S MOCHAHARI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 15.05.2025 Heard Mr. S. Dutta, the learned counsel appearing for the petitioners. Also Page No.# 2/8 heard Mr. R. J. Baruah, the learned Additional Public Prosecutor appearing for the State of Assam. 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has been filed by the petitioners, namely, 1. Pradip Biswas and 2. Mintu Choudhury, who have been detained behind the bars since 09.09.2023 (for more than 2 years), in connection with Bazaricherra PS Case No. 182 of 2023 under Section 20(b)(ii)(C)/25/29 of the NDPS Act 1985 and corresponding case Special NDPS Case No. 119/2023 pending before the Court of Sessions Judge, Sribhumi. 3. The gist of accusation in this case is that on 09.09.2023, one Shri Pranab Milli, SI of Police had lodged an FIR before the Officer-In-Charge of Bazaricherra Police Station, inter-alia, alleging that on that day during conducting naka checking duty at naka checking point of Churaibari Watch Post at National Highway No. 8, at about 6.30 AM, one 12 wheeler goods carrier truck bearing Registration No. TR-01-AS-1811, coming from Tripura Side was signalled to stop and thereafter, it was checked. During checking of the said vehicle, 66 numbers of packets containing suspected ganja were found concealed in secret chambers of the said vehicle. On weighing the recovered ganja, the weight was found to be 400 kg and 200 grams. From the said truck, the driver Pradip Biswas, the co- driver Mintu Choudhury (present petitioners) and the helper Sujit Nath were apprehended. It is also alleged that the present petitioners tried to escape from the place of occurrence, however, they were apprehended with the help of local people. During interrogation of apprehended persons, it came to light that the recovered contraband was sent by one Giribhai @ Bibhash and the present petitioners were in contact with the said person over his mobile phone. Page No.# 3/8 4. On receipt of the FIR, Bazaricherra P.S. Case No.182/2023 under Sections 20(b)(ii)(C)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was registered. 5. Learned counsel for the petitioners has submitted that both the petitioners are driver and co-driver of the vehicle from which the seized contraband was recovered. He also submits that both the petitioners are detained behind the bars for more than 2 years and though the charges were framed against both the petitioners on 09.01.2025. However, till date not even a single witness out of 10 prosecution witnesses in the charge-sheet has been examined. He also submits that at the time of the arrest of the petitioners, the grounds of arrest were not furnished to them though notice under Section 50 of the Code of Criminal Procedure, 1973 was served upon them, however, apart from the police station case and the penal provisions involve in the case, no other basic facts which necessitated the arrest of the petitioners were mentioned in the said notice. 6. Learned counsel for the petitioners has also submitted that in the meanwhile one of the co-accused, namely, Sujit Nath has already been granted bail by this Court, i.e., Bail Appl. No. 115/2025 on 05.04.2025. 7. The learned counsel for the petitioner has also submitted that furnishing the grounds of arrest at the time of arrest of the arrestee is a constitutional mandate under Article 22 of the Constitution of India and if the same is violated before render the arrest itself illegal which would entitled the such an arrestee which would go on bail. In support of his submission, he is cited a judgement of Page No.# 4/8 the Apex Court in the case of Vihaan Kumar Vs State of Haryana reported in (2025) SCC Online SC 269 as well as the case of Harikisan vs State of Maharashtra and Ors reported in 1962 SCC Online SC 117. 8. On the other hand, the learned Additional Public Prosecutor has submitted that as far as the plea of grounds of arrest is concerned, the petitioners were informed about the grounds of their arrest at the time of their arrest. Regarding the necessity of furnishing written grounds of arrest as laid down by the Apex Court in the case of Pankaj Bansal Vs Union of India reported in (2024) 7 SCC 576, he submits that the same has been clarified by the Apex Court in its judgment in the case of Ram Kishor Arora Vs Directorate of Enforcement reported in (2024) 7 SCC 599 wherein it was observed that as in the case of Pankaj Bansal (supra), Apex Court has used the word “henceforth” while discussing the requirement of furnishing written grounds of arrest, hence, it indicates that the said requirement of furnishing written grounds of arrest would only the prospective from the date of the said judgment. Learned Addl. Public Prosecutor submits that as the judgment in the case of Pankaj Bansal (supra) was delivered on 03.10.2023 it is only after the said date the requirement of furnishing written grounds of arrest would be applicable. He submits that in the instant case, the petitioners were arrested before the delivery of the judgment the case of Pankaj Bansal (supra), i.e., on 09.09.2020 and therefore he submits that the requirement of furnishing written grounds of arrest in the instant case is only directory in nature. 9. I have considered the submissions made by learned counsel for both the sides. Page No.# 5/8 10. It appears that the co-accused, namely, Sujit Nath was granted bail only on the ground of prolonged incarceration when his period of detention was one year seven months only. However, the present petitioners have been languishing behind the bars for more than 2 years and not even a single witness has been examined in this case. 11. 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”. 12. 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.” 13. 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 against the precious fundamental right 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.” 14. In this regard the observations made by the Apex Court in the case of Page No.# 6/8 Satender Kumar Antil Vs. Central Bureau of Investigation & Anothe” 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 court 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.” 15. This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited hereinabove, 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. 16. For the reasons mentioned hereinabove, this Court is of the opinion that the prolonged incarceration of the above named petitioners have outweighed the embargo of Section 37(1)(b)(ii) of NDPS Act, 1985 and therefore the petitioners are entitled to go on bail on the ground of prolonged incarceration. As regards Page No.# 7/8 the ground of not furnishing the written grounds of arrest in this case, is concerned, this Court does not intend to discuss the matter in detail as the petitioners have already been found entitled to get bail on the ground of prolonged incarceration. 17. In view of the above named petitioners, in the aforementioned case is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakh only) each 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 Special Judge, Sribhumi (Karimganj) with the following conditions: i. That the petitioners shall cooperate in the trial of Special NDPS Case No. 119/2023, which is pending in the Court of the learned Special Judge, Sribhumi (Karimganj); ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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 petitioners; iv. That the petitioners shall provide his contact details including photocopies of their Aadhar Cards 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 petitioners shall submit their leave address and Page No.# 8/8 contact details during such leave before the Trial Court; vi. That the petitioners shall not commit any offence while on bail; vii. That the petitioners shall appear before the Officer-in-Charge of Bazarichera Police Station once in every fortnight till the pendency of the Special NDPS Case No. 119/2023; viii. That any violation of the above conditions shall be a good ground for the Trial Court to get the petitioners arrested and commit them to custody. 18. With the above observations, this bail application is hereby disposed of. 19. Return the case diary. JUDGE Comparing Assistant