Page No.# 1/7 GAHC010080082025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1199/2025 DEBAJIT SAHA SO NITISH CHANDRA SAHA R/OBIRDDHYANAGAR, PO RANI BAZAR, PS RANI BAZAR, DISTRICT WEST TRIPURA, TRIPURA-799035 VERSUS THE UNION OF INDIA REPRESENTED BY S C, NCB, GUWAHATI Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 08.05.2025 Heard Mr. M. Biswas, learned counsel for the petitioner and Ms. N. Kakati, learned counsel representing the NCB. 2. By filing this application U/S 483 of the BNSS, 2023, the petitioner, namely, Debajit Saha, has sought for bail in connection with NDPS Case No.189/2022 Page No.# 2/7 (corresponding to NCB Crime No. 04/2022) U/S 20(b)(ii)(c)/ 25/ 27A /29 of the NDPS Act, pending in the Court of learned Additional Sessions Judge (FTC) No.3, Kamrup (M), Guwahati. 3. The petitioner has arraigned as accused in connection with NCB crime No. 04/2022 alleging that he was involved in trafficking of the seized Ganja weighing 405.270 kgs along with other co-accused. He was arrested along with other co- accused while they appeared on receipt of notices U/S 67 of the NDPS Act. Initially, the co-accused Kumar Sunar who was the driver of the truck bearing No. NL-01-AF-3380 was arrested by the NCB on the allegation that the said Kumar Sunar would carry huge quantities of Ganjas in the aforesaid truck. Accordingly, a search operation was conducted by the NCB and the said vehicle was intercepted and searched and accordingly 405.270 kgs of Ganja was recovered and seized. 4. According to learned counsel for the petitioner, the petitioner has been languishing in judicial custody for more than 3 years since his arrest on 04.03.2022. Out of 10 witnesses, 6 witnesses have been examined till date, if the trial continues at this pace, then there is no likelihood of completion of trial at an early date. 5. It is also submitted that the petitioner was arrested on the basis of the statement of the arrested co-accused. Nothing was recovered from the possession of the petitioner. In the case of Toofan Singh vs. State of Tamil Nadu, reported in (2021) 4 SCC 1, the Hon’ble Apex Court held that a statement made under Section 67 of the NDPS Act is an inadmissible piece of evidence. 6. The main thrust of argument for the learned counsel for the petitioner is Page No.# 3/7 that no grounds of arrest was communicated to the petitioner in the notice served upon him U/S 50 Cr.P.C. (U/S 47 BNSS) as well as no notice was served to his representative U/S 50(A) Cr.P.C. (U/S 48 BNSS) which are mandatory in nature. Considering the background of the case as well as the length of detention, the petitioner may be enlarged on bail. 7. On that issue, learned counsel has relied on the following case laws- a. Prabir Purkaystha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254. b. Vihaan Kurmar Vs. State of Haryana and Anr., reported in (2025) SCC Online (SC) 269. 8. Per contra, Ms. Kakati, has argued that the truck from which the alleged contraband was transported belongs to the petitioner. It is submitted that once the charge sheet has been laid the question of grant of bail has to be considered and decided only with reference to the merits of the case vide the judgment of the Hon’ble Supreme Court reported in (2024) 3 SCC 734 (CBI Vs. Kapil Wadhawan and another). 9. By referring the judgement of NCB Vs. Kashif vide (2024) SCC online SC 3848, Ms. Kakati has pointed out that the Hon’ble Supreme Court has determined the grounds for granting bail in case of NDPS Act in paragraph 39 of the said case. Accordingly, the learned counsel representing the NCB has prayed for dismissing the bail application. 10. I have considered the submission of the learned counsel for the parties and also perused the Trial Court record. Page No.# 4/7 11. Regarding prolonged incarceration, admittedly, the accused petitioner was arrested on 04.03.2022 i.e., he has been detained in custody for more than 3 years. Charge was framed on 07.11.2022. After that more than two years have been elapsed but the prosecution has failed to complete the trial. There is no explanation from the side of the NCB regarding such delay of process of trial. It is also not in dispute that the alleged contraband was recovered from the possession of one Kumar Sunar. 12. It is pertinent to say here that in the case of Kapil Wadhawan (Supra), it was discussed regarding statutory right of default bail U/S 167 Cr.P.C. which is not applicable in the instant case. Coming to the case of Kashif (Supra), the Hon’ble Supreme Court has stated that 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. However, in the case of Vihaan Kumar (Supra), it is specifically stated that when violation of Article 22(1) is established, it is the duty of the Court to order the release of the accused and that will be a ground to grant bail, even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the Court to grant bail when the violation of Article 21 and 22 is established. 13. In the case in hand, as it appears from the Section 50 Cr.P.C. notice issued to the petitioner by NCB dated 04.03.2022 which is reproduced as follows- “You are hereby informed that you are arrested in connection with above reference case and the case is non-bailable. So, you are forwarded to the Court. You may submit petition before the Hon’ble Court for your bail.” Page No.# 5/7 14. From the aforesaid notice issued to the petitioner vide NCB case No.04/2022, it reveals that no grounds of arrest has been informed to the petitioner as alleged which is mandatory in nature. 15. In another case vide Prabir Purkayastha Vs. State (NCT of Delhi) (supra), wherein it has been categorically held that the law laid down in the case of Pankaj Bansal (supra) would be squarely applicable in cases under the UA (P) Act or for that matter any other offences. The accused has fundamental and 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 and non-supply of written grounds of arrest to the arrested person would vitiate the arrest even if the case has been charge-sheeted. 16. In the case of Vihan Kumar vs. State of Haryana (supra), wherein the Hon’ble Apex Court has referred the case of Pankaj Bansal, (2024) 7 SCC 576 and the case of Prabir Purkayastha (Supra) and the Court held as follows – “28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the “grounds” of “arrest” or “detention”, as per the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned. Page No.# 6/7 29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Article 22(1) and Article 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non- compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.” 17. In view of the aforesaid legal proposition, it can be said that an arrested person must be informed of the ground of his arrest and detention which is mandatory in nature. Admittedly, in the case in hand, there is no reflection in the arrest memo or the Section 50 Cr.P.C. notice issued to the petitioner that the grounds of arrest was being informed to the petitioner at the time of his arrest. Accordingly, the petitioner is entitled for bail. 18. The accused namely, Debajit Saha, shall be released on bail on furnishing a bail bond of Rs.2,00,000/-(Rupees Two Lakhs) with two sureties of the like amount out of which one of the surety must be Government employee in the State of Assam, to the satisfaction of the learned Additional Sessions Judge (FTC) No.3, Kamrup (M), Guwahati. 19. The direction for bail is further subject to the following conditions that the accused petitioner- a. shall not leave the territorial jurisdiction of the Additional Sessions Judge (FTC) No.3, Kamrup (M), Guwahati, Assam without prior written permission from him/her till disposal of the case. Page No.# 7/7 b. shall regularly attend the trial Court and cooperate with the Court for early disposal of the case. 20. The learned Additional Sessions Judge (FTC) No.3, Kamrup (M), Guwahati, Assam is at liberty to impose any other condition(s) as it deems fit and proper at the time of releasing the accused/petitioner on bail to procure his attendance during trial. 21. The observation made by this Court is for the purpose of this bail application only, not on merits of the case. 22. In terms of the above, this bail application stands disposed of. JUDGE Comparing Assistant