Page No.# 1/8 GAHC010144332025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2154/2025 SHOKHOHEN HAOKHOPAO SINGSIT @ SHOKHOHEN HAOKHOPAO AND ANR S/O- HAOKHOPAO SINGSIT. R/O- VILL.- TUI BUONG, P.S. AND DIST.- CHURACHANDPUR, MANIPUR, PIN-795128. 2: SEIMINTHANG TOUTHANG @ SEIMINTHANG S/O- SOJANG TOUTHANG. R/O- VILL.- JANGNOMPHAI P.S. AND DIST.- CHURACHANDPUR MANIPUR PIN-795128 VERSUS THE UNION OF INDIA REPRESENTED BY CUSTOM DEPARTMENT. Advocate for the Petitioner : MR. L R MAZUMDER, MR. A ISLAM Advocate for the Respondent : SC, CUSTOMS, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 03.09.2025 1. Heard Mr. L. R. Mazumder, the learned counsel for the petitioners. Also heard Ms. M. Deka, the learned standing counsel for the Customs Department. Page No.# 2/8 2. This is an application under Section 483 of BNSS, 2023 by the petitioners, namely, (1) Shokhohen Haokhopao Singsit @ Shokhohen Haokhopao, and (2) Seiminthang Touthang @ Seiminthang, who have been detained behind the bars since 11.09.2023 (last 2 years) in connection with NDPS Case No. 62/2024 corresponding to Departmental Case No. 01/CL/NDPS/PREV/SIL/2023-24 dated 10.09.2024 registered under Section 21(c)/29 of NDPS Act, 1985. 3. The learned counsel for the petitioners has submitted that both the petitioners were arrested in connection with this case on 10.09.2023, and they are languishing behind the bars for last 2 years. 4. The learned counsel for the petitioners has also submitted that in this case the Trial Court has been proceeding with the trial according to the procedure for trial of complaint cases, instead of proceeding according to the procedure for sessions, triable cases and, accordingly, 5 witnesses have been recorded before framing of charges. 5. He further submits that the charges were framed against the present petitioners on 10.09.2023, and now the case is pending for cross- examination of prosecution witnesses. 6. He submits that the trial has not proceeded in an expeditious manner, and the petitioners are languishing behind the bars for more than two years, which has infringed the fundamental rights of the petitioner guaranteed to them under Article 21 of the Constitution of India. 7. He also submits that in the instant case, no notice under Section 50/50A of the Code of Criminal Procedure, 1973 was furnished to the petitioners or their relatives/friends/nominated persons. 8. However, the Trial Court had erroneously held while rejecting Page No.# 3/8 their prayer for bail on 15.05.2025 that no violation of article 22(1) is there in this case, as the grounds of arrest have been mentioned in the arrest memo. 9. The learned counsel for the petitioners has submitted that the petitioners are ready to cooperate in the trial and, therefore, they may be allowed to go on bail. 10. On the other hand, the learned standing counsel for the Customs Department has vehemently opposed the grant of bail to the petitioners on the grounds that the charges were framed in this case only on 01.09.2025, and the case is next fixed for cross-examination of prosecution witnesses, and only 5 witnesses are there and, therefore, the trial would not take much time to culminate. 11. She also submits that in this case, the grounds of arrest were communicated to the petitioners at the time of their arrest, while mentioning the same in the arrest memo which were prepared at the time of the arrest of the petitioner. 12. She, however, fairly submits that she could not find the notice under Section 50/50A of the Code of Criminal Procedure, 1973 in the case records. 13. I have considered the submissions made by learned counsel for both sides and have gone through the scanned copy of the trial case records. 14. In the instant case, it is admitted position that notice under Section 50A of the Code of Criminal Procedure, 1973 was not served on the relatives/friends or persons nominated by the petitioners. Thus, it is a clear violation of the mandate of the Apex Court as laid down in the case Page No.# 4/8 of “Vihaan Kumar Vs. The State of Haryana” reported in (2025) 5 SCC 799. 15. It appears that in the case of “Vihaan Kumar Vs. The State of Haryana” (Supra), the Apex Court that the requirement of communicating the grounds of arrest in writing is not only to the arrested person but also to the friends, relatives or such other person as may disclosed or nominated by the arrested person so as make a mandate of Article 22(1) of the Constitution of India meaningful and effective, failing which, such arrest may be rendered illegal. 16. Further, both the accused persons are languishing behind the bars for more than two years which according to in the considered opinion of this Court is incarceration long enough so as to infringe the fundamental rights of the petitioners guaranteed to them under Article 21 of the Constitution of India. 17. The Hon’ble Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in 2023 SCC Online SC 352 has observed that “grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985”. 18. The Hon'ble Apex Court in “Rabi Prakesh Vs. State of Orissa” reported in 2023 live law (SC) 533, wherein it has been observed by the Hon'ble Apex Court that “The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 19. It appears on perusal of the rulings cited by learned counsel for Page No.# 5/8 the petitioner that in all the cases cited by the petitioner, though commercial quantity of contraband was involved and apparently the embargo of Section 37 of the NDPS Act, 1985 would have been applicable in those cases, however, only because of the fact of the prolonged incarceration of the petitioners, the Apex Court allowed the petitioners to go on bail. 20. In view of the observation made by the Apex Court, this Court is of the considered opinion that if, under the facts and circumstances of this case, this Court comes to the finding that there is an undue delay in the completion of the trial, and that the incarceration of the petitioner is long enough, he would be entitled to get bail on the ground of such prolonged incarceration, as in such a case of prolonged incarceration, the right to life and personal liberty guaranteed to the petitioner under Section Article 21 of the Constitution of India would outweigh the fetter imposed under Section 37 of the NDPS Act, 1985. 21. It is also pertinent to mention herein that the Hon'ble Supreme Court of India had granted bail to an accused facing charges for possession of a commercial quantity of contraband only on the ground of prolonged incarceration in “Shariful Islam @ Sarif Vs. State of West Bengal” (Order dated 04.08.2022 passed in SLP Criminal No. 4173/2022), wherein the accused was detained behind bars for one year and six months. 22. In “Nitesh Adhikari Vs. State of West Bengal“ (Order dated 04.05.2022 passed in SLP Criminal No. 5769/2022), Hon'ble 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. Page No.# 6/8 23. Similarly, in “Md. Salman Hanif Shaikh Vs. State of Gujarat” (Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), the petitioner was granted bail by the Apex Court on the ground of prolonged incarceration of two years. 24. In “Chitta Biswas Alias Subha Vs. The State Of West Bengal“ (Order dated 07.02.2020 passed in SLP Criminal No. 8823/2019), the Apex Court granted bail to the petitioner, who was facing a trial for possessing a commercial quantity of contraband. 25. In the instant case also, the present petitioners have been detained behind the bars for more than 2 years and only 6 prosecution witnesses have been examined at this stage. It is unlikelihood that the trial would culminate soon and in view of the facts and circumstances of this case as well as considering the observations made by the Apex Court in the rulings cited hereinabove, wherein, it has dealt with the question of long incarceration of similarly situated petitioners who were before the Apex Court, this Court is of the considered opinion that in the instant case also, the facts and circumstances are such that the long incarceration of the present petitioner has resulted infringement of the fundamental right guaranteed to him under Article 21 of the Constitution of India and the said fundamental rights guaranteed to him has outweighed the embargo of Section 37 of the NDPS, Act 1985 and the petitioner is therefore entitled to get bail on the ground of prolonged incarceration only. 26. Accordingly, the above-named petitioners are allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) each 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 Page No.# 7/8 Special Judge, Cachar with the following conditions: i. That the petitioners shall cooperate in the trial of NDPS Case No. 62/2024, which is pending in the Court of l learned Special Judge, Cachar; ii. That the petitioners shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioners 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 petitioners shall provide their contact details including photocopies of their Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court; v. That the petitioners 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 their leave address and contact details during such leave before the Trial Court; and vi. That the petitioners shall not commit any offence while on bail. Page No.# 8/8 27. With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant