Page No.# 1/6 GAHC010115082025 2025:GAU-AS:10881 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1801/2025 MD HOYDOR ALI ALIAS HOYDAR ALI AND ANR S/O MD. JABED ALI R/O VILL- DEWARI KHOLA, P.S. FAKIRGANJ, DIST. SOUTH SALMARA, ASSAM 2: MD. RASHIDUL ALI @ ASHOK ALI S/O MD. JABED ALI R/O VILL- DEWARI KHOLA P.S. FAKIRGANJ DIST. SOUTH SALMARA ASSA VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR N P DOWERAH, MR S SARMA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 14.08.2025 Heard Mr. N.P. Dowerah, learned counsel for the accused and Mr. P. Barthakur, learned Additional Public Prosecutor for the State respondent. Page No.# 2/6 2. This petition, under Section 483, BNSS is preferred by two accused, namely, Md. Hoydor Ali @ Hoydar Ali and Md. Rashidul Ali @ Ashok Ali, who have been languishing in jail hazot in connection with Dhubri P.S. Case No. 313/2024, under Sections 22(c)/29 of the NDPS Act, since 04.09.2024 and 14.09.2024 respectively, for grant of bail. 3. It is to be noted here that the aforementioned case has been registered on the basis of an FIR lodged by SI(P) Jyotirmoy Das of Dhubri P.S. on 04.09.2024. The essence of allegation against the present accused persons is that on 04.09.2024, at about 12:30 a.m., acting on a tip off that two suspected persons are carrying large amount of suspected narcotics/psychotropic substances along with them inside a blue-black colour bag and they are going towards Kalibari Road, a G.D. Entry was registered, vide Dhubri P.S. G.D.E. No. 109, dated 04.09.2024. Thereafter, the Officer In-charge, Dhubri P.S. had issued a written authorization letter to the informant pursuant to Notification No. EX. 145/85/301, dated Dispur, the 15th May, 1995, under Section 41(2) of the NDPS Act. Thereafter, the informant along with his staff proceeded towards the place of occurrence and they found the two accused persons at about 12:48 a.m. at Kalibari Road with one blue-black colour handbag and then in presence of witnesses, search was conducted and 12 numbers of Eskuf Codeine Phosphate & Triprolidine Hydrochloride syrup (100 ml per bottle) having batch No. OEKS- 022 were recovered from the said bag and the same were seized by preparing seizure list in presence of witnesses. Thereafter, the informant lodged the FIR upon which Dhubri P.S. Case No. 313/2024, under Sections 22(c)/29 of the NDPS Act was registered. 4. Mr. Dowerah, the learned counsel for the accused submits that the accused persons were arrested on 04.09.2024 and 14.09.2024, and since then, Page No.# 3/6 they have been languishing in jail hazot for last 345 days. Mr. Dowerah also submits that now the case is pending at the stage of evidence and out of the nine witnesses, two witnesses have been examined so far, and that there is no immediate chance of completion of the trial, and under such circumstances, it is contended to allow the petition. 5. On a pointed query of this Court, Mr. Dowerah, however, submits that he is not in a position to satisfy the twin requirements of Section 37(1)(b)(ii) of the NDPS Act that the accused are not guilty and that they will not commit any offence if bail is granted to them. 6. On the other hand, Mr. Barthakur, learned Additional Public Prosecutor submits that trial of this case is going on and two witnesses have been examined so far, and that the quantity of contraband substances, so recovered from the possession of the accused persons, are of commercial quantity, and from the materials placed on record and also from the submission of learned counsel for the accused, it cannot be said that the twin requirements of Section 37(1)(b)(ii) of the NDPS Act are satisfied with. Under such circumstances, Mr. Barthakur has contended to dismiss the petition. 7. To a pointed query of this Court, as to whether the ground of arrest was communicated to the accused persons at the time of arrest, Mr. Barthakur submits that in the memo of arrest and notices enclosed with the petition, there is no such indication. 8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record received from the learned trial Court. Page No.# 4/6 9. It appears that the accused persons were arrested on 04.09.2024 and 14.09.2024, and since then, they have been languishing in jail hazot for last 345 days. It also appears that the contraband substances allegedly recovered from their possession are of commercial quantity, and they have been charged under Sections 22(c) and 29 of the NDPS Act. Further, it appears that out of nine witnesses cited in the charged-sheet, two witnesses have been examined so far. 10. Further, from the submission of Mr. Dowerah, learned counsel for the accused and also from the materials placed on record, this Court is unable to derive satisfaction that the accused persons are not guilty of the offence and that they will not commit any office while on bail. 11. However, having gone through the documents placed on record, especially from the notice and the memo of arrest available in the scanned copy of the record, this Court is unable to derive satisfaction that the ground of arrest was ever communicated to the accused persons at the time of their arrest. Although no such ground was taken in the petition by the accused persons even then, this Court is duty bound to examine the same, and having gone through the record and the documents placed on record along with the petition, this Court is unable to derive satisfaction that the ground of arrest was communicated to the accused persons. And as such, right of the accused persons as guaranteed under Article 22(1) of the Constitution of India as well as the direction of Hon’ble Supreme Court in the cases of Vihaan Kumar vs. State of Haryana and Anr., reported in 2025 SCC OnLine SC 269 and Prabir Purkayastha vs. State (NCT of Delhi), reported in (2024) 8 SCC 254, stands violated in this case. Further, in view of the decision of Hon’ble Supreme Court in Vihaan Kumar (supra), in spite of the statutory bar under Section 37 of the NDPS Act, this Court is inclined to grant bail to the accused persons. Page No.# 5/6 12. It is to be noted here that while dealing with the issue of communication of ground of arrest to the accused, in the case of Vihaan Kumar (supra), Hon’ble Supreme Court has held as under: “21. Therefore, we conclude: a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1); b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved; c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1); d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of charge sheet will not validate a breach of constitutional mandate under Article 22(1); e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and Page No.# 6/6 f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. 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 Articles 21 and 22 of the Constitution is established.” 13. Even though the accused persons have failed to satisfy the twin conditions of Section 37 of the NDPS Act, yet, in the case of Vihaan Kumar (supra), it has been held that when a violation of Article 22(1) is established, it is the duty of the Court to forthwith 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 Articles 21 and 22 of the Constitution is established. 14. Under the given factual and legal backdrop, this Court is inclined to allow this petition. It is provided that on furnishing a bond of Rs. 1,00,000/- each, with one surety of like amount, to the satisfaction of the learned trial Court, both the accused persons be enlarged on bail. 15. Liberty is granted to the learned trial Court to impose any other condition on bail so as to ensure the presence of the accused persons during trial. 16. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant