Page No.# 1/12 GAHC010099762025 2025:GAU-AS:7394 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1516/2025 ATAUR RAHMAN ALIAS ATHWAR RAHMAN S/O HAJI SAMSUL HOQUE TALUKDAR R/O VILL-BORHAWAR,P.S.MURAJHAR DIST. HOJAI, ASSAM VERSUS THE UNION OF INDIA REPRESENTED BY THE SC, NCB Advocate for the Petitioner : MS. S K NARGIS, A SAHA,MS N SULTANA,MS S BEGUM Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 04.06.2025 1. Heard Ms. S.K. Nargis, the learned counsel for the petitioner. Also heard Mr. S.C. Keyal, the learned Standing Counsel, NCB. 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the petitioner, namely, Ataur Page No.# 2/12 Rahman @Athwar Rahman, who has been detained behind the bars since 19.02.2022 (for more than 3 years 3 months) in connection with NDPS Case No. 180/2022, arising out of NCB Crime No. 03/2022, under Sections 21(c)/25/29 of the NDPS Act, 1985. 3. This is for the 2nd time, the petitioner has approached this Court seeking bail, in connection with the aforesaid case. His earlier bail application was rejected by this Court, by order dated 04.10.2024 in Bail Application No. 2229/2024. 4. The gist of accusation in this case is that on 18.02.2022 at about 1200 Hrs., Shri Anil Kushawaha, Intelligence Officer, Narcotics Control Bureau, Zonal Unit, Guwahati, received an information through reliable sources that three persons, namely Ataur Rahman, Md. Suhud Ahmed and Akram Hussain Choudhury are coming in two vehicles, namely, Maruti Swift Dzire bearing Registration No. AS-03-H-3191 and Maruti Gypsy vehicle bearing Registration No. AS-01-EV-8493 carrying huge quantity of illegal morphine from Dimapur. Accordingly, a team of NCB officials was constituted and started surveillance at Nazirakhat Toll Plaza area. 5. On 18.02.2022, at about 18 Hrs. a Maruti Swift Dzire bearing Registration No. AS-03-H-3191 was intercepted at the collection point of toll plaza. The present petitioner as well as another accused, namely Ataur Rahman, was inside the said vehicle. After sometime, one Maruti Gypsy vehicle bearing Registration No. AS-01-EV-8493 was also intercepted at the Nazirakhat Toll Plaza and one person was found seated inside the said vehicle. He introduced himself as Akram Hussain Choudhury. Page No.# 3/12 6. On search of the said vehicles, 10 packets containing 5 kgs of morphine were recovered from the Maruti Swift Dzire vehicle and 14 packets containing 7.040 kgs of morphine were recovered from Maruti Gypsy vehicle. The accused persons were apprehended and the contraband was seized by the NCB officials. Thereafter, on 16.08.2022, formal complaint under Section 36A of the NDPS Act, 1985 was submitted against four numbers of accused persons, including the present petitioner under Section 21(c)/25/29 of the NDPS Act, 1985. 7. The learned counsel for the petitioner has submitted that the earlier bail application filed by the petitioner was rejected on 24.10.2024 and since the date of the said rejection, more than 6(six) months have lapsed, however, the trial has not progressed much. It is submitted that only 2(two) more witnesses have been examined since then. She submits that out of 17(seventeen) listed prosecution witnesses, only 9(nine) witnesses have been examined till date and the petitioner has been languishing behind the bars for the last 3years 3 months. 8. She submits that though in the earlier rejection order, this Court considered the period of detention of the petitioner at that point of time, i.e., 02 years 07months, as not long enough to grant the benefit of prolonged incarceration to the petitioner, however, now 6(six) more months have been added to the said period and the trial has not progressed much. Hence, she submits that due to long incarceration, the Fundamental Rights of the petitioner guaranteed under Article 21 of the Constitution of India has been violated and on that ground, the petitioner is entitled to get bail. Page No.# 4/12 9. The learned counsel for the petitioner has submitted that this time the petitioner is also pressing for an additional ground for seeking bail, that is, when he was arrested, though notice under Section 50 of the Code of Criminal Procedure, 1973 was issued to him, however, no grounds of arrest were mentioned in the said notice. 10. The learned counsel for the petitioner has also submitted that the grounds of arrest were also not informed to the family members/relatives of the petitioner under Section 50A of the Code of Criminal Procedure, 1973. 11. She submits that furnishing the grounds of arrest to an arrestee at the time of his arrest is a Constitutional Mandate. Similarly, furnishing the grounds of arrest to the family members/relatives/friends of an arrestee under Section 50A is also a mandatory requirement and any violation of the same would render the arrest itself illegal. She submits that due to non-compliance of the mandatory constitutional as well as statutory provisions, the petitioner is entitled to get bail. 12. In support of her submission, she has cited the ruling of the Apex Court in the case of-(i) “Vihaan Kumar Vs. State of Haryana and Another“ reported in “2025 SCC Online SC 269” and (ii) “Prabir Purkayastha Vs. State (NCT of Delhi)” reported in “(2024) 8SCC 254.” 13. She has also cited the following rulings in support of her submissions. i. “Hussainara Khatoon & Ors Vs. Home Secretary, State of Page No.# 5/12 Bihar,” reported in “(1980) 1 SCC 98;” ii. “Supreme Court Legal Aid Committee Representing Under Trial Prisoners Vs. Union of India & Others” reported in “1994 (6) SCC 731;” iii. “Satender Kumar Antil Vs. Central Bureau of Investigation,” reported in “(2022) 10 SCC 51;” iv. “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352;” v. “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109;” vi. “Chitta Biswas @ Subhas Vs. The State of West Bengal” (Order dated 07.02.2020) in “Criminal Appeal No. 245/2020;” vii. “Nitesh Adhikari @ Bapan Vs. State of West Bengal” (Order dated 01.08.2022 in “SLP Criminal No. 5769/2022);” viii. “Shariful Islam @ Sarif Vs. State of West Bengal” (order dated 04.08.2022 in “SLP Criminal No. 4173/2022).” 14. On the other hand, learned Standing Counsel, NCB has vehemently opposed the grant of bail to the present petitioner on the ground that the quantity of contraband recovered from the present petitioner is of commercial quantity and, therefore, the embargo of Section 37 of the NDPS Act is applicable in this case. He also submits that the present petitioner is also a habitual offender dealing with narcotics drugs as he was earlier convicted for possessing 1200 kgs of ganja and after the trial in Special Case No. 3/2010 before the Court of learned Sessions Judge, Morigaon he was convicted under 20(b)(ii)(c) of the NDPS Act, 1985 and was sentenced to undergo rigorous imprisonment for 10 Page No.# 6/12 years. He also submitted that after serving out the sentence in the said case, the petitioner has involved himself again in the illegal dealings of narcotics drugs and, therefore, he should not be granted bail in this case merely on the ground of prolonged incarceration. 15. The learned Standing Counsel for the NCB has also submitted that the bail application of the petitioner was considered by this Court and after considering all the materials, it was rejected by order dated 04.10.2024 in Bail Application No. 2229/2024. 16. He submits that the trial is fairly progressing and it should be allowed to reach its logical conclusion without showing any leniency to the petitioner. 17. The learned Standing Counsel, NCB has also submitted that in a criminal trial it is not possible to lay down a fix period for conclusion of trial as the conclusion of criminal trial depends on many factors like nature of offence, the number of accused, the number of witnesses, the workload in the particular court, the means of communication and several other circumstances which are to be kept in mind and if the delay is not for any wrong on the prosecution side, the accused should not get benefit of any such systemic delay. 18. The learned Standing Counsel, NCB has cited a ruling of the Apex Court in the case of “High Court Bar Association, Allahabad Vs. The State Of Uttar Pradesh” reported in “2024 Legal Eagle (SC) 198” to buttress his submission. Apart from above cited rulings learned Standing Counsel, NCB has also cited following ruling in support of his submission: Page No.# 7/12 i. “Hira Singh and Another Vs. Union of India and Another” reported in “2020 (20) SCC 272;” ii. “Narcotics Control Bureau v. Mohit Aggarwal,” reported in “2022 0 Supreme (SC) 619;” iii. “Union of India v. Ajay Kumar Singh @ Pappu,” reported in “2023 0 Supreme (SC) 285;” iv. “State of Bihar & Anr. v. Amit Kumar @ Bacha Rai,” reported in “2017 (13) SCC 751;” v. “MattuLal v. Radhe Lal,” reported in “AIR 1974 SC 1596;” vi. “National Insurance Company Limited v. Pranay Sethi;” reported in “2017 16 SCC 680;” vii. “Secundrabad Club v. CIT” reported in “2023 0 Supreme (SC) 765.” 19. The learned Standing Counsel for the NCB has also submitted that so far as regards the grounds of arrest is concerned, the same has been communicated to the petitioner by serving upon him notice under Section 50 of the Code of Criminal Procedure, 1973. 20. He also submits that grounds of arrest of the petitioner were also intimated to his family members by serving upon them notice under Section 50A of the Code of Criminal Procedure, 1973. 21. The learned Standing Counsel, NCB has submitted that when on the previous occasion, the bail application filed by the petitioner has Page No.# 8/12 already been rejected after considering all the materials on record, as well as considering the fact that this case involves commercial quantity of contraband and therefore, the embargo of Section 37 of the NDPS Act, 1985 comes into play and considering the incriminating materials against the petitioner, his bail application is liable to be rejected. 22. I have gone through the materials available on record, including the scanned copy of the case records of NDPS Case No. 180/2022. 23. I have also considered the submissions made by the learned counsel for both sides and have also perused the rulings relied upon by them. 24. On perusal of the materials available on record, it appears that though in the notice under Section 50 of the Code of Criminal Procedure, 1973, which was served on the petitioner on 19.02.2022, the police station case number as well as penal provisions involved in the case were mentioned, however, no grounds of arrest have been mentioned therein. 25. However, it appears that in the memorandum of arrest prepared on the date of the arrest of the petitioner, which was also served on the petitioner, basic facts necessitated the arrest of the petitioner, including the grounds of his arrest appears to have been stated in the said memorandum of arrest. 26. It also appears that the notice to the father of the petitioner, which was issued on 19.02.2022, though captioned as intimation of arrest, however, it also discloses basic grounds for arrest. Page No.# 9/12 27. Further on the perusal of the notice issued to the father of the petitioner on the date of arrest, it appears that same has been captioned as intimation of arrest and it only gives an information that the petitioner has been arrested in connection with a case of a seizure of contraband involving 12.040 kgs of morphine from a Maruti Gypsy bearing Registration No. AS-01-EV-8493, however, it does not give any indication as to how the petitioner is connected with the said case or why the petitioner was arrested in connection with the said case. Therefore, the information which is furnished in the said notice cannot be regarded as grounds of arrest of the petitioner. 28. The Supreme Court of India in “Mohd Muslim @ Hussain Vs. State” (NCT of Delhi)” (supra) has observed that “Grant of bail on ground of undue delay in trial, cannot be said to be fettered by section 37 of the NDPS Act, 1985”. 29. Similarly, the Apex Court of India has also observed in “Rabi Prakash Vs. The State of Odisha” (Supra) wherein, it observed that “prolonged incarceration, generally militates against the most precious Fundamental Rights guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act, 1985.” 30. It is also pertinent to mention herein that the Supreme Court of India had granted bail to the accused facing charges for possession of commercial quantity of contraband only on the ground of prolonged incarceration in “Shariful Islam @ Sarif Vs. State of West Bengal” (Supra), Page No.# 10/12 wherein the accused was detained behind the bars for one year and six months. 31. In “Nitesh Adhikari Vs. State of West Bengal” (Supra), the Apex Court granted bail to the accused facing accusation under Section 21(c) of the NDPS Act, 1985 on the ground of incarceration of one year seven months. 32. It appears that the previous bail application of the petitioner was dismissed about six months ago, mainly on the ground that considering his previous conviction in an offence under Section 20(b)(ii)(c) of the NDPS Act, 1985 the period of detention which was undergone by the petitioner at that point of time (two years seven months) was not considered to be long enough at that time. Hence, the prayer for bail was rejected at that time. However, the question arises that even if a person is previously convicted once, that may in itself not be a reason for subjecting an under trial prisoner to a prolonged incarceration without there being a fair progress in the investigation. 33. In the instant case, after rejection of the bail order of the petitioner more than 6(six) months have been lapsed, but it appears that during this period of 6(six) months, the prosecution side could examine only 2(two) witnesses thus total 9(nine) out of 17(seventeen) listed witnesses have been examined. Still 8(eight) witnesses are yet to be examined and at this phase in which the trial is presently progressing, it is unlikely that it would culminate soon. 34. This Court is of considered opinion that mainly because of the Page No.# 11/12 fact that the bail application of the petitioner was once rejected, he cannot be subjected to unreasonable prolonged incarceration. 35. Such unreasonable prolonged incarceration of more than three years three months of the petitioner and it is certainly violative of his Fundamental Rights guaranteed under Article 21 of the Constitution of India and under such circumstances, the Fundamental rights guaranteed under Article 21 of the Constitution of India to the petitioner would override the embargo of section 37 of the NDPS Act, 1985. 36. This Court is of considered opinion that though the prayer for bail was rejected about 6(six) months ago, the same may not be a reason for again rejecting the bail application now, if there has not been much progress in the trial. As we have seen that only 2(two) more witnesses will be examined during the period of last 6(six) months since the date of rejection of the bail application is incarceration for three years three months appear to be unreasonable and violative of his Fundamental Rights and on that ground alone he is entitled to get bail. 37. This Court therefore, allows the bail application of the petitioner. He is therefore directed to be released on bail on furnishing a bond of Rs. 2,00,000/- (Rupees Two Lakh only) 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, Kamrup (M) with the following conditions: i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 180/2022, which is pending before the Court of learned Additional District & Sessions Judge No. 3, Kamrup (M), Guwahati; Page No.# 12/12 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 petitioner; 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 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. 38. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant