Page No.# 1/5 GAHC010117292025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1818/2025 MD SABIR ALIAS MD SHAVIR S/O MOHAMMAD SIRAJUDDIN R/O VILL- GOVINDPUR, P.O. SADIPUR, P.S. AND BLOCK-PIRPAINTI, DIST. BHAGALPUR, BIHAR- 813209 VERSUS UNION OF INDIA REP BY THE STANDING COUNSEL, NCB Advocate for the Petitioner : MR J K Bhuyan, MS. P GHOSH,MS B GOGOI Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 15.07.2025 1. Heard Mr. J. K. Bhuyan, learned counsel for the petitioner. Also heard Ms. N. Kakati, learned counsel for the NCB. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Md. Sabir @ Md. Shavir, who has been detained behind the bars since 09.04.2023 (for last 2 year, 3 months and 6 days) in connection with NDPS Case No. 151/2023 corresponding to NCB Case No. 07/2023 under Sections 20(b)(ii)(c)/8(c)/25/29 of the NDPS Act, 1985 which is presently Page No.# 2/5 pending before the Court of the learned Special Judge, Kamrup(M). 3. The gist of the accusation in this case is that in the instant case the NCB has filed a complaint before the Court of the learned Special Judge, Kamrup(M), inter alia, alleging that on receipt of specific information through reliable sources that the petitioner would be carrying huge quantity of ganja from Tripura to Bihar in Truck No. NL-01-AA-5344, a search team was constituted and the said truck was intercepted and searched. During search of the aforesaid truck, the petitioner was found in the said truck and 67 packets of ganja concealed in false cavity on the roof of the driver's cabin were also recovered there from. On weighing the recovered ganja, it was found that the total weight of the same was 682 kg 200 grams. 4. The learned counsel for the petitioner has submitted that in this case the final complaint was filed by the NCB on 27.09.2023 and 8(eight) witnesses were enlisted therein. He submits that out of 8(eight) witnesses only 4(four) witnesses have been examined and the last witness was examined on 24.02.2025 and since last 5(five) months no witness has been examined. 5. The learned counsel for the petitioner has submitted that the petitioner is entitled to speedy trial and his prolonged incarceration has, in the instant case, outweighed the embargo of Section 37 of the NDPS Act, 1985, hence, he is entitled to get bail in this case. The learned counsel for the petitioner has also submitted that in the instant case the constitutional mandate of furnishing the grounds of arrest to the petitioner at the time of his arrest was also not followed. He submits that though notice under Section 50 the Code of Criminal Procedure was served on the petitioner at the time of his arrest, however, same does not contain the grounds of arrest. He submits that on the same grounds also the petitioner is entitled to get bail in this case. Page No.# 3/5 6. On the other hand, the learned counsel for NCB has opposed the grant of bail to the petitioner on the ground that the quantity of ganja seized in this case is of commercial quantity and, therefore, the embargo of Section 37 of the NDPS Act is applicable to this case. She also submits that out of 8(eight) listed witnesses 4(four) are already examined and only 4(four) witnesses are to be examined and the next date of the trial is fixed on 7th of August, 2025. 7. The learned counsel for NCB has also cited a ruling of the coordinate bench of this court in the case of “Amir Khan and another Vs. Union of India” (Bail Application No. 1448/2025). In said case, she submits that though Section 50 notice was silent regarding the communication of grounds of arrest to the arrestee, however, the arrest memo reflected the grounds of arrest. She also submits that in the instant case the communication sent to the family members of the petitioner contains the grounds of arrest of the petitioner and in Section 50 notice the petitioner has also put his signature at the time of his arrest and, therefore, there is a compliance of the mandatory requirement of furnishing the grounds of arrest. She accordingly opposes the grant of bail to the petitioner. 8. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. 9. In this case the petitioner has prayed for bail mainly on two counts first one is the ground of prolonged incarceration i.e., he has been detained behind the bars for last 2 year, 3 months and 6 days, however, the trial has not yet culminated and out of eight listed prosecution witnesses only four witnesses have been examined. It is also relevant that in spite of the fact that the petitioner is behind the bars, in last five months not even a single witness have been examined. Page No.# 4/5 10. It is now no longer res integra that prolonged incarceration violates the fundamental rights of the detenu which were guaranteed to him under Article 21 of the Constitution of India. The Apex Court has observed several of its rulings that prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985. 11. Moreover, in this case, it appears that apart from prolonged incarceration, the petitioner was not furnished with the grounds of arrest when he was arrested on 09.04.2023. It appears from the record that though the notice under Section 50 was served on the petitioner at the time of his arrest, however, the said notice does not contain the basic facts which necessitated the arrest of the petitioner. It only contains the case number and the penal provision involved in this case which is not in the compliance of either the statutory provision contained in Section 50 of the Cr.P.C. or the constitutional provision contained in Article 22(1) of the Constitution of India. 12. The Apex Court in the case of the “Vihaan Kumar Vs. State of Haryana” reported in “(2025) SCC Online SC 269” has observed that furnishing grounds of arrest in writing to an arrestee at the time of his arrest is a mandatory requirement under Article 22(1) of the Constitution of India and non-compliance of this constitutional mandate would render the arrest of an arrestee itself vitiated and under such circumstances such an arrestee is entitled to get bail. In the instant case also, there has been violation of the aforesaid constitutional mandate. 13. In view of above discussion, the petitioner is entitled to get bail in this case for violation of the fundamental rights of the petitioner guaranteed under Article 21 and 22(1) of the Constitution of India. Page No.# 5/5 14. The above named petitioner is, accordingly, allowed to go on Rs.1,00,000/- (Rupees One Lakh) only with two sureties of like amount, subject to the satisfaction of the learned Special Judge, Kamrup(M) with following conditions:- i. That the petitioner shall co-operate in the trial of NDPS Case No. 151/2023, which is pending in the Court of the learned Special Judge, Kamrup(M). 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 as well as, 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. 15. With the above observations, this bail application is hereby disposed of. JUDGE Comparing Assistant