Page No.# 1/7 GAHC010092842025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1446/2025 SRI MODAN NGATE @ MADAN NGATE SON OF NARAYAN NGATE, RESIDENT OF VILLAGE BORGOYA KHAGARI, P.O. BORGAYA, P.S. NORTH LAKHIMPUR, DIST. LAKHIMPUR, ASSAM, PIN- 787031 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. J HATIMURIA, MR. N M DAS,MR. M KALITA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 29.07.2025 1. Heard Mr. M. Kalita, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State. 2. This application under Section 483 of BNSS, 2023 has been Page No.# 2/7 filed by the petitioner, namely, 1. Modan Ngate @ Madan Ngate, who has been detained behind the bars since 09.03.2025 (for last 143 days) in connection with Panigaon P.S Case No.14/2025 under Sections 20(b)(ii)C/29 of NDPS Act, 1985. 3. The gist of the accusation in this case is that on 09.03.2025, one J. Sarmah, S.I of Police had lodged an FIR before the Officer-in-Charge, Panigaon P.S, inter alia, alleging that on receipt of an information through reliable sources that huge quantity of ganja would be carried in a vehicle for selling the same at different places in Panigaon area, a search team was constituted and a naka checking was arranged. 4. During naka checking, the vehicle bearing registration no.AS-07-Y-2028 was intercepted and during search of the said vehicle, 21.350 kgs of suspected ganja was recovered there from and the present petitioner and one another co-accused namely Jogeswar Ngate were apprehended from the said vehicle. 5. The learned counsel for the petitioner has submitted that in this case, though the quantity of suspected ganja which was recovered from the aforesaid vehicle was found to be 21.350 kg, however, as requires under rules, the said ganja was not weigh separately and it was weighed along with the polythene packet. 6. He submits that had the polythene packet been weighed separately, there was likelihood that the quantity of ganja would have come less than commercial quantity i.e. 20 kg. Page No.# 3/7 7. The learned counsel for the petitioner has also submitted that though the petitioner was served with notice u/s 47 of BNSS at the time of his arrest, however, in the said notice, apart from the Police Station Case Number and the Penal Provisions, no grounds of arrest were stated therein. 8. He submits that only reason of arrest as indicated below were mentioned therein – a) The arrested accused person is an FIR named accused. b) To prevent such person from committing any further offence. c) For proper investigation of the offence. d) To prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner. e) To prevent such person from making 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 the police officer. f) As unless such person is arrested, his presence in the Court whenever required cannot be ensured. Page No.# 4/7 9. The learned counsel for the petitioner has also submitted that aforesaid reasons of arrest are general in nature and may be applicable to all accused persons who may be arrested in NDPS cases and no specific acquisition has been disclosed in the said reasons. 10. The learned counsel for the petitioner has cited the ruling of the Apex Court in the case of Prabir Purkayastha Vs. State (NCT of Delhi) in support of his submission. 11. On the other hand, the learned Additional Public Prosecutor for the State has vehemently opposed the grant of bail to the petitioner at this stage on the ground that the contraband seized in this case is of commercial quantity and as such embargo of Section 47 of the NDPS Act is applicable in this case. 12. He also submits that the co-accused is yet to be arrested in this case. He further submitted that at the time of certification of the inventory by the Magistrate, the polythene packet in which the suspected contraband was kept was weighed separately and the weight of the said polythene packet was found to be 1.6 gm. 13. He therefore submits that the contraband seized in this case remains commercial quantity. He also submitted that the notice issued to the petitioner u/s 47 of the NDPS Act mentions about the reasons of arrest in detail. 14. I have considered the submissions made by learned counsel for both sides and have gone through the case diary of Panigaon P.S Page No.# 5/7 Case No.14/2025 which was produced by the learned Additional Public Prosecutor for the State. 15. It appears that the contraband seized in this case is of commercial quantity. However, it also appears that there has been contravention of the constitutional mandate of Article 221 of the Constitution of India in this case as the notice u/s 47 of the NDPS Act which was served on the petitioner contains only reasons for his arrest which is different from the grounds of arrest as clarified by the Apex Court in the case of Prabir Purkayastha Vs. State (Supra). 16. In the aforesaid case, the Apex Court has observed as follows – “We have carefully perused the arrest memo (Anenxure P-7) and find that the same nowhere conveys the grounds on which the accused was being arrested. The arrest memo is simply a proforma indicating the formal ‘reasons’ for which the accused was being arrested.” 17. In this case therefore, it appears that the basic facts and the accusation against the petitioner for which he was arrested is not stated in the notice 47 of the NDPS Act which was served on him at the time of his arrest. 18. As held by the Apex Court mere mentioning the reasons which are distinguishable from grounds of arrest in the notice would not be a compliance of the constitutional mandate of Article 221 of the Constitution. Page No.# 6/7 19. This Court therefore, is of the view that the fundamental rights guaranteed under Article 221 of the Constitution of India, which is violated in this case, overrides the embargo of Section 47 of the NDPS Act and on that count, the petitioner is entitled to get bail. 20. For aforesaid reasons, the above-named petitioner is allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand) only with one surety of like amount subject to the satisfaction of the Court of learned Special Judge, Lakhimpur, North Lakhimpur with following conditions - i. That the petitioner shall cooperate in the trial of Panigaon P.S Case No.14/2025, which is pending in the Court of the learned Special Judge, Lakhimpur, North Lakhimpur; 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 petitioners; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card 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 Page No.# 7/7 leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any offence while on bail. 21. With the above observation, this bail application is accordingly, disposed of. 22. Send back the case diary. JUDGE Comparing Assistant