Page No.# 1/7 GAHC010113772025 2025:GAU-AS:10254 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1786/2025 MD. SADDAM S/O- WASHI AKHTAR. R/O- VILL.- N.K. DARRANGA, P.S.- TAMULPUR, ASSAM. PIN-781367 VERSUS THE STATE OF ASSAM REPRESENTED BY PP, ASSAM. Advocate for the Petitioner : MR. A PAUL, MD. M. ALI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 06-08-2025 Heard Mr. A. Paul, the learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent. Page No.# 2/7 2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of bail to the accused/petitioner, who has been arrested in connection with Special NDPS Case No. 11/2024, pending in the Court of Special Judge, Baksa, Mushalpur arising out of Tamulpur P.S. Case No. 280/2023 registered under Section 22(C) of the NDPS Act, 1985. 3. Scanned copy of the TCR has already been received. Perused the same. 4. It is submitted by Mr. Paul, the learned counsel for the petitioner, that the present accused/petitioner is innocent and he is no way involved in the alleged offence. There was no recovery from his conscious possession. However, the present petitioner in in custody since last 1 year 8 months and he got arrested on 28.11.2023. So, considering his long period of incarceration, he may be released on bail. 5. Mr. Paul, the learned counsel for the petitioner has submitted that the grounds of arrest was not mentioned while furnishing the Arrest Memo, Inspection Memo and issuing notice under Section 50 of the Cr.P.C., which is a mandatory requirement. He also submitted that the family members were also not served with any notice u/s 48A of BNSS intimating grounds of arrest of the petitioner. The non-compliance of this requirement constitutes a violation of Articles 21 and 22(1) of the Constitution of India. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself. 6. In support of his submissions, Mr. Paul, learned counsel for the petitioner, Page No.# 3/7 has cited the following decisions: (i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269. (ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254. 7. Mr. Paul also submitted that though in the case of commercial quantity, the rigor of Section 37 NDPS Act follows, but in cases where there is violation of the constitutional provision as mandated under Articles 21 & 22 of the Constitution of India, the statutory restriction will not affect the power of the Court to grant bail in such circumstances. More so, non-mentioning of grounds of arrest while issuing the Arrest Memo or Notice under Section 50 Cr.P.C. is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioner is entitled to bail. 8. Mr. Sharma, the learned Additional Public Prosecutor, submitted in this regard that recovery of contraband was made from the conscious possession of the accused-petitioner. He further submitted that there was a compliance of Section 50 & 50A Cr.PC and the notice was also issued to the present petitioner to that effect. Though the details of the case was not mentioned in the notice but the petitioner was very much aware about his grounds of arrest which was intimated to him verbally. 9. Mr. Sharma further submitted that the entire contraband was recovered from the conscious possession of the accused/petitioner and he also led to the investigating team to his house wherefrom the rest amount of the contraband were recovered from his own house. Thus, he submitted that the accused was Page No.# 4/7 fully aware about the grounds of arrest or the offence which is alleged to have been committed by the present petitioner. 10. Mr. Sharma further submitted that his earlier bail application was also rejected considering the materials in the Case Diary and he submitted that there is every probability of absconding of the accused/petitioner or jumping over the bail conditions if the present petitioner is allowed to go on bail at this stage. He further submitted that the case is also progressing in a good pace and out of 16 nos. of witnesses 13 have already been examined and all the witnesses implicated the present petitioner showing his involvement in the alleged offence. Only 3 witnesses are yet to be examined and there is every probability of disposal of the matter within a short period. Mr. Sharma accordingly raised vehement objection and submitted that it is not at all a fit case to grant bail to the present petitioner only on the ground of incarceration. 11. Accordingly, Mr. Sharma submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. 12. For ready reference, Section 37 NDPS Act is extracted herein below: “37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 Page No.# 5/7 (b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.” 13. Thus, as per Section 37 (1) (b) of NDPS Act, the bail can only be granted, if there is no reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, from the materials available in the case record as well as the evidences of the witnesses, there cannot be any reasons to believe that the accused/petitioner is not guilty of such offence or he is not likely to commit any offence while on bail as per Section 37 (1) (b) of NDPS Act. 14. After hearing the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the TCR. 15. It is a fact that the present accused/petitioner is in custody since last more than 1 year 8 months from his date of arrest i.e. since 28.11.2023 and it is also fact that there is no detail description of the offence alleged to have been committed by the accused/petitioner in the notices issued u/s 50, 50A Cr.PC as well as in the Arrest Memo. But, from the submission made by learned Additional Public Prosecutor and from the materials in the Case Diary it is very much evident that the entire contraband was recovered from the conscious possession of the accused/petitioner and that apart the accused/petitioner also Page No.# 6/7 led the investigating team to his house wherefrom also some contrabands were recovered in his premise. So considering this aspect of the case, it cannot be held that the petitioner was not aware about the grounds of arrest or he was not aware about the offence which is alleged to have been committed by him. 16. Coming to the issue of long incarceration, it is seen that the petitioner is in custody since last more than 1 year 8 months since the date of arrest. But, it cannot be denied that out of 16 nos. of witnesses the prosecution could examine 13 nos. of witnesses within a period of 1 year 8 months of his detention. Thus, the case is also progressing in a good pace and it cannot be held that there is inordinate delay in the trial of the case that influenced the right of the accused/petitioner under Article 21 of the Constitution of India. 17. The Supreme Court in the case of Kalayan Chandra Satkar Vs. Rajesh Ranjan Alias Pappu Yadav & Anr. [(2005) 2 SCC 42] has expressed the view that the accused cannot be granted with bail solely on the ground of period of incarceration undergone by the accused. It was further held that the accused cannot be granted bail on the sole ground of delay in conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of prima facie case, gravity of the offence and the allegation of tampering with the witnesses by threat and inducement when on bail. 18. In the case of Rajesh Ranjan [(2004) 7 SCC 528], the Supreme Court has held that mere fact that the accused has undergone certain period of incarceration by itself would not entitle the accused to be enlarged on bail nor the fact that the trial is not likely to be concluded in the near future, either by itself or coupled with the period of incarceration would be sufficient for Page No.# 7/7 enlarging the accused on bail. It is also held that while considering the bail application, the Court must consider the nature of acquisition, the severity of the punishment in case of conviction, the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge. 19. In view of the entire discussions made above and also considering the view expressed by the Hon’ble Apex Court and also considering that the trial is in the verge of completion wherein 13 nos. of prosecution witnesses have been examined by the prosecution out of 16 nos. of witnesses and all other aspects of the case, vis-a vis, the nature and gravity of the offence, I do not find it proper to allow the accused to go on bail at this stage and hence, the same stands rejected. 20. The bail application stands disposed of accordingly. JUDGE Comparing Assistant