Page No.# 1/14 GAHC010132822025 2025:GAU-AS:13929 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2088/2025 AMIR KHAN AND ORS S/O- LATE MOOWA ALI. R/O- VILL.- SANGAIYMPHAM. P.O.- WANGJING, P.S.- THOUBAL. DIST.- THOUBAL, MANIPUR, PIN-795148. 2: MD. HABIBUR RAHMAN S/O- MD. THOMBA. R/O- VILL.- SANGAIYMPHAM. P.O.- WANGJING P.S.- THOUBAL. DIST.- THOUBAL MANIPUR PIN-795148. 3: MD. FARUQUE KHAN S/O- MD. RAFIQUL. R/O- VILL.- SANGAIYMPHAM. P.O.- WANGJING P.S.- THOUBAL. DIST.- THOUBAL MANIPUR PIN-795148 VERSUS THE UNION OF INDIA REPRESENTED BY THE SC, NCB, GUWAHATI. Advocate for the Petitioners : Mr. NJ Dutta Advocate for the Respondent : Mr. SC Keyal Page No.# 2/14 B E F O R E HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Date of hearing : 16.09.2025 Date of order : 17.10.2025 ORDER (CAV) Heard Mr. NJ Dutta, learned counsel for the petitioners as well as Mr. SC Keyal, learned counsel representing the NCB. 2. By filing this application U/S 483 of the BNSS, 2023, the petitioners, namely, Amir Khan, Md. Habibur Rahman and Md. Faruque have sought for bail in connection with NDPS Case No. 129/2024 (arising out of NCB Crime No. 17/2023) under Section 8(c) r/w Section 21(c)/29 of NDPS Act, pending in the Court of learned Special Judge, Kamrup(M), Guwahati, Assam. 3. The factual matrix leading to this bail application is that on 16.10.2023, on the basis of secret information, the intelligence officer, NCB moved at HB lodge, VIP road, Six Mile, Guwahati. Two Co-accused Sahid Alom and Md. Faruque Khan (petitioner No. 3) were found in Room No. 6. Upon investigating, they revealed about the other two (petitioner Nos. 1 & 2, Co-accused) sitting in one Page No.# 3/14 Honda City car bearing Regd. No. AS-01-AJ-8180, which was found parked inside the premises of HB Lodge. Thereafter, search was conducted and 37 soap cases of different colours, containing suspected heroin were recovered and seized. Accordingly, a case was registered and subsequently the petitioners were arrested. 4. It is submitted by the learned counsel for the petitioners that the petitioners have been langulshing in judicial custody for more than one and half years since their arrest on 18.10.2023. It is also submitted by the learned counsel for the petitioners that after completion of investigation, on 06.04.2024, charge sheet has been laid. It is further submitted that on 29.08.2024, charge has been framed against the accused/petitioners. However, only one witness is examined till date. 5. It is further submitted by the learned counsel for the petitioners that the petitioners have been falsely implicated in this case and they are no way involved in the instant case. It is also submitted that no grounds of arrest was communicated to the petitioners in the notice served on them U/S 50 Cr.P.C. (U/S 47 BNSS) which is mandatory in nature, thereby violating the mandates of Article 21/22 of the Constitution of India. Page No.# 4/14 6. It is submitted on behalf of the petitioners that the arresting authorities have arrested them without complying with the mandatory provisions provided in Article 22 (1) of the Constitution of India which impose a duty on the arresting authorities to inform the ground of arrest to the person arrested. Similarly, Section 50 of the Cr.P.C also imposes a duty on the arresting authority to provide the details of ground of arrest to the arrested accused person. Whereas, Section 50 (A) of the Code imposes a duty on the arresting authority to forthwith give the information of such arrest and place where the arrested person is being held to any of his friends, relative or such other person as may be disclosed or nominated by the arrested person for the purpose of giving such information. And in this regard, the Hon'ble Apex Court as well as this Hon'ble Court has, in a number of cases, held that the ground of arrest shall be communicated, in writing, to the arrested person as well as to the relative or friends so nominated by him. This valuable Fundamental Right of the accused person is sacrosanct and therefore, cannot be violated at any cost. In the instant case, the arresting authority did not state the ground of arrest in the notice served upon the accused/petitioners which is evident from the notices dated 17/10/2023. 7. It is further submitted that the underlying purpose of the provisions of Page No.# 5/14 Section 50 of the Cr.P.C. is to allow the arrested accused person to have sufficient notice in respect of the allegation brought against him so that he can defend himself against such allegation or to seek bail. Moreover, the purpose of the Section 50 (A) of the Code is to give sufficient notice about the arrest of the person so arrested to his relatives or friends and the place where such person is being held after the arrest and also to give them sufficient notice about the allegation brought against such arrested person so that they can prepare to secure bail for such arrested person as the arrested person may not be in a position to seek bail for himself while he is being held in custody. It is contended that the arresting authorities have also violated the provision of Section 50 (A) of the Cr.P.C. by not providing the information in respect of ground of arrest, in writing, to the relative or the family members of the accused/persons. 8. It is further contended that the arresting authorities have prepared memorandums of their arrest as per requirement of provision of Section 41 (B) of the Cr.P.C. However, the memorandums so prepared were not signed by any of the family members of the arrested accused persons nor were those signed by any respectable member of the locality where the arrest was made as mandated under the said Section. Moreover, the requirement for preparation of memorandum of arrest under Section 41 (B) is completely different from Page No.# 6/14 requirement of communication to be made under Section 50 of the Cr.P.C. Therefore, the arresting authority has completely violated the provision of Section 41 (B) of the Cr.P.C. as well. As such, the arrest of the accused/petitioners has been carried out without following the procedure established by law. 9. Per contra, Mr. SC Keyal, learned counsel appearing for the NCB, has submitted that commercial quantity of heroin was recovered from the conscious possession of the petitioners. As the commercial quantity of contraband item is involved in the instant case as such, the embargo under Section 37 of NDPS Act will come into play. It is also submitted one PW has been examined and cross examination part was reserved. Hence, he has opposed granting bail to the petitioner. However, he has further submitted that the grounds of arrest have been mentioned in the arrest memo issued to the petitioners. 10. It may be noted that a previous application filed on behalf of the petitioners Nos. 1 & 2 was rejected by this Court vide Order dated 26.05.2025 in Bail Appln. No. 1448/2025. A bail application of another Co-accused Sahid Alom was allowed by order dated 15.05.2025 in Bail Appln. No. 1143/2025. 11. I have given my anxious considerations to the rival submissions. The Page No.# 7/14 petitioners were arrested on 17.10.2023 and the perusal of the notices issued under Section 50 Cr.PC clearly shows that no grounds of arrest have been mentioned therein. However, individual arrest memos were also furnished to the petitioners wherein detailed grounds of arrest had been mentioned and furthermore, prior to their arrest the petitioners were questioned in detail pursuant to notice under Section 67 of the NDPS Act, and on perusal of such statements it is abundantly clear that the petitioners were more than aware as to the grounds of their arrest. Even though the purpose and scope of an arrest memo under Section 41(B) Cr.PC is different from a notice under Section 50 Cr.P.C, as far as the requirements of furnishing the grounds of arrest to the accused persons so as to fulfil the mandate of Article 22(1) of the Constitution of India is concerned, the memo of arrest wherein the grounds of arrest were mentioned in the detail would be capable of serving the said purpose i.e. informing the arrestee of the grounds of arrest. 12. 12. It has been submitted on behalf of the petitioners that as far as the arrest memo is concerned, it only bears the signature of the arrestee but no signature of any relative or respectable person of the locality, as required under Section 41B(b)(i) is available on the said arrest memo and therefore, the said arrest memo is also not in conformity with law. Page No.# 8/14 13. While it is correct that Section 41B(b)(i) requires the arresting officers to obtain signatures of the relatives, etc., of the arrested person on the arrest memo, the mere failure to do so would not ipso facto mean that the grounds of arrest have not been made known to the accused person in writing when his own signature is present therein. Therefore, I do not find any force in the aforesaid submission of the learned counsel. From the above, it is quite evident that the grounds of arrest were made known in writing to the accused persons on that very day of the arrest itself and there has been no violation of the mandate of Article 22(1) of the Constitution. 14. Now coming to the question of compliance with Section 50(A) Cr.PC regarding intimation of the grounds of arrest to the relatives/friends etc., of the accused person, it is seen from the arrest memo itself that a note has been appended thereto, stating that intimation of arrest was given by Md. Amir Khan to his brother-in-law on his Mobile No. 6009889146 at about 10:40 AM and the signature of the accused person appears under the said note. Although the said arrest memo has been annexed as Annexure-7 series to the instant bail application, there is no averment in the bail application itself that no such communication was made to the brother-in-law of the accused as stated in the arrest memo. Similar is the case with the co-accused Md. Habibur Rahman, Page No.# 9/14 wherein the note appended to the arrest memo states that intimation of arrest was given by Md. Habibur Rahman to his wife on her Mobile No:9863582723 on 18.10.2023. Similar note in respect of petitioner No. 3 Faruque Khan also appears in his arrest memo intimating his wife. None of these have been disputed in the bail application. A perusal of the record also reveals that notices dated 17.10.2023 addressed to the relatives of the accused persons stating the grounds of arrest were also issued although there is no proof of service. 15. The Hon’ble Supreme Court in Vihaan Kumar vs. State of Haryana & Anr., reported in 2025 LiveLaw (SC) 169 has held that the grounds of arrest are required to be communicated in writing to the relatives/friends/nominated persons of the accused and failure to do so ‘may’ render the arrest illegal. At this stage, what is extremely important to notice is that the addresses of the relatives of the accused persons show that they are residents of Manipur. Judicial notice of the fact has to be taken that at the time of occurrence i.e. 17.10.2023, Manipur was in the throes of ethnic violence and it could not have been very easy to serve such notices to the said persons and also to obtain proof of service. The decision in Vihaan Kumar (supra) cannot be read as permitting of no exception regardless of the circumstances. The use of the term ‘may’ would prima facie support this view. Moreover, the decision in Vihaan Page No.# 10/14 Kumar (supra) was rendered on 07.02.2025 i.e., much after the date of occurrence i.e., 17.10.2023. The Hon’ble Supreme Court in Pankaj Bansal vs. Union of India, reported in (2024) 7 SCC 576, which was delivered on 03.10.2023 i.e., prior to the occurrence, had laid down the requirement of furnishing the grounds of arrest to the arrested person in writing but had made it retrospective in operation by use of the word “Henceforth”, which was affirmed by the Hon’ble Supreme Court in the case of Ram Kishor Arora vs. Directorate of Enforcement: (2024) 7 SCC 599. 16. 16. The learned counsel for the petitioner has relied upon the decision of our High Court wherein a Co-ordinate Bench has held that though in the case of Pankaj Bansal (supra), the words “Henceforth” was used meaning thereby that the above requirement would be applicable from the date of pronouncement of judgment in Pankaj Bansal (supra), yet there is no such direction in the case of Vihaan Kumar (supra) and that being so, since judicial decisions are presumed to have retrospective application unless mentioned otherwise, the contention of the prosecution that Vihaan Kumar (supra) cannot be given retrospective effect, cannot be concurred with. It is the considered view of this Court that since it has been specifically stated in Pankaj Bansal (supra) that the requirement of furnishing of grounds of arrest in writing to the accused would only have Page No.# 11/14 prospective operation and as the subsequent judgment in Vihaan Kumar (supra) on the same issue did not mention otherwise, the additional requirement of furnishing the grounds of arrest to the relatives/friends/nominated persons of the accused introduced therein would also have to be read in prospective terms, in the absence of any stipulation otherwise, in view of the fact that giving of retrospective operation in the later case with regard to the requirement of furnishing of grounds of arrest in writing to the accused person would nullify the effect of Pankanj Bansal (supra), wherein only prospective operation of such requirement has been stipulated. Furthermore, since the requirement of furnishing the grounds of arrest to the accused person has been made prospective, similar requirement in respect of furnishing of grounds of arrest in writing to the relatives/friends/nominated persons can hardly be held to be a requirement to be insisted upon retrospectively. From that point of view as well, it appears that it was not mandatory for the investigating agency to furnish the grounds of arrest in writing to the relatives/friends/nominated persons since the occurrence took place prior to the decision in Vihaan Kumar (supra). 17. Furthermore, even if it were to be held that the decision in Vihaan Kumar (supra) would operate retrospectively, it would come in conflict with the decision in Pankaj Bansal (supra), as in that case, such retrospectivity per Vihaan Kumar Page No.# 12/14 (supra) would extend to a period even prior to the date of judgment in Pankaj Bansal (supra) despite Pankaj Bansal itself operating prospectively. Under such circumstance, assuming the existence of conflict of views, it is the prior decision of a Co-ordinate Bench that would stand in view of the decision of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi, reported in 2017 16 SCC 680, wherein it was held that if there are conflicting decisions of equal Benches of the Supreme Court, then the earlier decision should be followed by the High Court. But upon a harmonious reading of the aforesaid judgments, there does not appear to be any such conflict, if one were to take the view that Vihaan Kumar (supra) is prospective in operation. 18. Furthermore, in State of Karnataka vs. Sri. Darshan Etc., reported in 2025 5 SCC OnLine SC 1702, while interpreting in Vihaan Kumar (supra) it has been held that it is a settled principle that procedural lapses for furnishing of grounds of arrest absence prejudice do not ipso facto render the custody illegal or entitled the accused to be released and the test of demonstrable prejudice is to be applied. While holding so, Vihaan Kumar (supra) was also discussed and explained. 19. In the instant case, it is seen from the records that upon being produced before the Magistrate, the petitioners had stated that they would engage Page No.# 13/14 counsel of their own which they did and subsequently also applied for bail. Therefore, it does not appear that any demonstratable prejudice was caused to the accused persons, merely due to non-service of written grounds of arrest upon the relatives/friends/nominated person, if even it is assumed that such was the case, because the very purpose of such intimation is to enable the accused to apply for bail, as explained in Vihaan Kumar (supra). 20. It is also submitted on behalf of the petitioners that the petitioners have been languishing in jail since 17.10.2023 and it is contended that in other similar circumstances, other accused persons have been granted bail by this Court. 21. In Sri. Darshan Etc. (supra), the Hon’ble Supreme Court has reiterated its decisions in State of UP Through CBI vs. Amarmani Tripathi, (2005) 8 SCC 21, wherein the Court re-affirmed that the mere fact that the accused has undergone certain period of incarceration by itself would not entitle the accused to being enlarged on bail when the gravity of the offence alleged was severe. It also referred to the decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528, wherein it was held that the mere fact that the accused has undergone certain period of incarceration (3 years in this case) 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 Page No.# 14/14 period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence is severe, and there are allegations of tampering with the witnesses by the accused during the period he was on bail. 22. In the present case, the accused petitioners are charged with possession of a commercial quantity of drugs and it need not be reiterated that the menace of drugs has engulfed society in a massive way, destroying individuals as well as families and is threatening to shake the very foundations of the lives of the youth of our society. Hence, there cannot be any doubt with regard to the gravity of the offence for the purpose of consideration of bail. Furthermore, since the charge against the accused is that commercial quantity of drugs had been recovered from their possession/constructive possession it cannot be said, upon a perusal of the material on record, that there are reasonable grounds to believe that the accused persons are not guilty of alleged offence and thereby, the rigour of Section 37 of NDPS Act would be squarely attracted in the facts of the case. Having regard to the above, the prayer for bail stands rejected at this stage. JUDGE Comparing Assistant