Page No.# 1/7 GAHC010089582025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1364/2025 JAYAD KHAN AND ANR S/O MD. ABASKHAN R/O SANHAIYUMPHAM PART-II, CHERAPUR, CITY- SANGAIYUMPHAM,P.O. WANGJING,PS. THOUBAL DIST- THOUBAL- MANIPUR-795148 2: EUSUF ALI @ YUSUB ALI S/O JALAL RAHMAN VILLAGE HAZARIPARA PO FUTKIBARI PS BILASIPARA DISTRICT DHUBRI ASSAM-79334 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, NCB Advocate for the Petitioner : MR. M BISWAS, MS. A K CHOPHI,J SINGPHO Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER 28.05.2025 Heard Mr. M. Biswas, learned counsel for the petitioners. Also heard Mr. K. Jain, learned counsel representing the NCB. Page No.# 2/7 2. By filing this bail application under Section 483 BNSS, 2023 the petitioners, namely, Md. Jayad Khan and Eusuf Ali @ Yusub Ali, have sought for bail in connection with NDPS Case No. 140/2024 corresponding to NCB Crime No. 18/2023 under Section 21(c)/29 of NDPS Act, pending in the court of learned Additional Sessions Judge No.2, Kamrup(M). 3. The matter relates to recovery and seizure of 11 packets of Heroin happens to be commercial quantity from a vehicle bearing registration No. AS01AE 8182. 4. The learned counsel for the petitioners has submitted that the petitioner No. 1 was arrested on 29.10.2023 as such he has been detained in custody for more than 1 year 6 months. The other accused Eusuf Ali has been languishing in judicial custody for last 1 year 4 months since his arrest on 03.01.2024. It is further submitted that charge was framed on 07.10.2024 and out of 14 cited witnesses in the charge-sheet, no witness is examined till date. It is further contended by learned counsel for the petitioner that the petitioner No.2 was shown arrested on the basis of statement made under Section 67 of NDPS Act by the co-accused. The accused petitioner No.2 was enlarged on bail in respect of his first offence vide order dated 14.05.2025 in BA 1205/2025. 5. The further submission for the learned counsel for the petitioner is that at the time of arrest of petitioner No.1 no grounds of arrest was communicated to him which is mandatory in nature. Similarly, when the petitionerNo.2 was shown arrested in connection with this case no notice was served to him showing the grounds of arrest which violates fundamental rights of the petitioners guaranteed under Article 21/22 of the Constitution of India. Under such backdrop, the learned counsel for the petitioners has submitted that the petitioners are entitled for bail. In support of his submission, learned counsel for the petitioner has relied on Page No.# 3/7 the following case law – (i) Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 SCC Online SC 934. 6. Per contra, Mr. Jain, learned counsel representing the NCB has submitted that Section 50 Cr.P.C. notice and intimation of arrest to relative of the accused petitioner, Jayad Khan was accordingly done as per procedure. In case of the accused petitioner No.2, he was arrested by the NCB during follow up action on 02.01.2024 with proper procedure vide NCB Case No. 17/2023, subsequently he was arrested in connection with NCB Crime No. 18/2023. 7. According to learned NCB counsel, the accused petitioner No.2, Eusuf Ali has indulged in organizing the illicit trafficking of narcotic drugs and psychotropic substances as well as high propensity to engage in this illicit activity, he was arrested under section 3(1) of the prevention of illicit traffic in narcotic drugs and psychotropic substance Act, 1988 with a view to preventing him from engaging in further illicit trafficking of narcotic drugs and psychotropic substances. Hence, the learned counsel has prayed for dismissal of the bail application. 8. Having heard the learned counsel for the parties and on perusal of trial court record, it reveals that the memorandum of arrest issued to the petitioner No.1, Md. Jayad Khan has shown the grounds of arrest which is reproduced as follows: “In consequence of /connection with the recovery and seizure of 409 grams Heroin in connection with above referred case under Section: 43 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) on 29.10.2023 at 05:00 AM at NCB Office, Rupkonwarpath, Chachal, Guwahati Assam, I do hereby arrest Md. Jayad Khan S/o- Md. Abas Khan, R/o- Sangaiyumpham Part-II, Cherapur, City-Sanaiyumpham, P.O. Wangjing, P.S. Thoubal, District- Thoubal, State- Manipur-795148, under Section 42 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) on 29.10.2023 at 1830 hrs at the office of Narcotics Control Bureau, Guwahati, Assam on reasonable belief / prima facie proof that the Page No.# 4/7 said seized contraband / articles / documents are liable to confiscation under Section: 60 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) and the aforesaid Md. Jayad Khan is liable to proceedings under Section 8(c) read with u/s 21(c) and 29 of NDPS Act, 1985 (as amended) for contravention of the provisions of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) which have already been duly explained to him. The aforesaid arrested person is being forwarded to the competent authority within twenty four hours for his remand to judicial custody.” 9. On a bare look at the arrest memo issued to the petitioner No.1, Jayad Khan, it reflects that the grounds of arrest have been communicated to him. It also reveals that the arrest memo bears the signature of the accused petitioner No.1, Jayad Khan. However, the Section 50 Cr.P.C. notice does not reflect any grounds of arrest communicated to the petitioner No.1. It also appears that another notice was issued by the NCB to the wife of the petitioner No.1 Mrs. Suhana which is as follows - “This is to inform you that on 29.10.2023, NCB Guwahati Zonal Unit had seized 409 gram Heroin and registered a case vide NCB Guwahati Crime No. 18/2023 U/s 8 (c) to be read with 21(c) & 29 of the NDPS Act 1985 and arrested your husband Md. Jayad Khan in connection with this case. Md. Jayad Khan will be produced before the Hon'ble Chief Judicial Magistrate, Kamrup (M), Guwahati, Assam on 30.10.2023.” 10. On perusal of the aforesaid documents, it reveals that at the time of arrest of the petitioner No.1, Jayad Khan, the grounds of arrest has been communicated to him and his wife. Hence, the cited case laws relied on by the learned counsel for the petitioner is not applicable here in this case as the grounds of arrest are specifically mentioned in the arrest memo issued to the petitioner No.1, Jayad Khan. 11. Hence, the prayer for bail pertaining to accused/petitioner No.1, Md. Jayad Khan is rejected. Page No.# 5/7 12. Regarding bail of accused/petitioner no.2, admittedly the accused petitioner No.2, Eusuf Ali @ Yusub Ali was shown arrested in connection with this case vide NCB Crime No.18/2023. On perusal of the trial court record, it reveals that when the accused petitioner no.2 was arrested in connection with NCB Crime No.18/2023, Section 50 notice or the arrest memo was not issued to him which are mandatory in nature. 13. It is specifically stated in the case of Vihaan Kumar (supra) which is reproduced as below – “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 with this constitutional requirement and statutory mandate would relate to the custody or the detention being rendered illegal, as the case may be….” 14. In another case vide Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 SCC Online SC 934, 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. Page No.# 6/7 15. In the case vide (2025) SCC Online SC 240 (Directorate of Enforcement Vs. Subhash Sharma, it was held as follows– “Once a court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. Therefore, when arrest is illegal or vitiated, bail cannot be denied on the grounds of non-fulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA.” 16. Situated thus, the settled principle of law is that an arrested person must be informed about the grounds of his arrest and detention which is mandatory in nature. Article 22 safeguards the individual against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. In the instant case, admittedly at the time of shown arrest of the accused/petitioner, notice under Section 50 Cr.P.C. was not issued to him and arrest memo is also not available in the record of NCB Crime No. 18/2023. Under such backdrop, this Court by following the observation of the Hon’ble Supreme Court as above, is inclined to grant bail to the petitioner No.2, Eusuf Ali. 17. Accordingly, the petitioner No.2, namely, Eusuf Ali @ Yusub Ali shall be released on bail on furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh only) with two suitable sureties of the like amount, out of which, one of the sureties should be a Government employee of the State of Assam, to the satisfaction of learned Additional Sessions Judge No.2, Kamrup(M). The direction for bail is further subject to the conditions that the petitioner No.2 (Eusuf Ali): Page No.# 7/7 (a) shall not leave the territorial jurisdiction of learned Additional Sessions Judge No.2, Kamrup(M), Assam without prior written permission from him/her; (b) shall regularly attend the trial court and cooperate with the court for early disposal of the case; and (c) 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. 18. It is pertinent to mention here that the findings of this court that the arrest of the petitioner No.2 stands vitiated will not affect the merits of the pending case. 19. The bail application is disposed of accordingly. JUDGE Comparing Assistant