Page No.# 1/7 GAHC010166682024 2025:GAU-AS:3409 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2556/2024 IMAM UDDIN S/O LATE ABDUL KHALEK, VILL- JALALABAD, P.S.-RATABARI, DIST- KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. M A CHOUDHURY, MR A AHMED,U U KHAN,MR. A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 25-03-2025 1. Heard learned counsel Mr. A. Ahmed for the petitioner, Imam Uddin who has filed this application under Section 483 of the BNSS, 2023 with prayer for bail as he is behind bars since 06.10.2022 in connection with Special (NDPS) Case No.146/2022 pending in the Court of learned Special Judge, Karimganj Page No.# 2/7 arising out of Ratabari P.S.Case No. 290/2022 under Sections 21(b)(ii)(c)/22b(ii) (c) of the NDPS Act r/w Section 25(1) (a) of Arms Act. 2. Heard learned Addl.Public Prosecutor Mr. D.P.Goswami for the respondent State. 3. It is submitted that the petitioner is behind the bars for more than 2 years 4 months. 19 witnesses are enlisted in the charge sheet and only 6 witnesses have been examined so far. It appears that the petitioner’s right to personal liberty has been curtailed as he has been incarcerated due to procrastination of trial by the prosecution as well as by the Court. The petitioner deserves bail on the ground that he was not found in conscious possession of 2000 Yaba tablets & brown sugar, which were recovered from a bike of the petitioner. The petitioner is willing to furnish reliable security and if required, a Government employee as his surety. The seizure witnesses have not supported the petitioner’s case and this is one of the reasons where Section 37 of the NDPS Act does not create an embargo for bail. 4. Learned Addl.Public Prosecutor has raised serious objection stating that the petitioner was arrested on 16.10.2022. Charges were framed against him only on 03.06.2023 and since then, 6 witnesses have already been examined. The petitioner is booked under a serious offence and he is not entitled to bail. It is submitted that the allegation against the petitioner is that on the basis of a secret information, a Naka checking was held and the petitioner was apprehended while he was carrying a hand made pistol, with wooden butt, one cartridge and Yaba tablets weighing 231 grams on his motorbike bearing registration No.AS-10E-4696. Page No.# 3/7 5. The learned counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of Ankur Chaudhury –vs- State of Madhya Pradesh reported in SLP No.4648/2024 wherein vide order dated 28.05.2024, the Hon’ble Supreme Court has observed as herein below: “……. Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” However, the facts and circumstances of the instant case is not similar to the case of Ankur Chaudhury (supra). In this instant case, the petitioner was apprehended with Yaba tablets as well as a firearm. In this case, 6 out of 19 witnesses have already been examined. 6. I have scrutinized the evidence of PWs-1 2, 3, 4, 5 and 6. 7. The evidence is not analysed on its merit but at the same time, it cannot be conclusively decided that the petitioner deserves bail as panch witnesses have not supported the case. 8. The petitioner has also relied on the decision of this Court in the case of Ajir Ali @ Budi in connection with Bail Application No.255/2025, wherein vide order dated 27.02.2025, this Court has observed in paragraph Nos. 26 and 27 as Page No.# 4/7 herein below: “26. In the case of Vihan Kumar Vs. State of Haryana and Another (Supra), the Apex Court has also observed as follows:- “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 chargesheet will not validate a breach of constitutional Page No.# 5/7 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 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.” “27. In the instant case also, as discussed herein above, the arrest memo as well as the notice served upon the arrestee under Section 47 of the BNSS, 2023 nowhere mentions the grounds of arrest, it only mentions about the case number in which the arrest has been made and the penal provisions which the case involves. It does not mention about full particulars of the offence and all basic facts on which the petitioner was arrested. Neither it mentions about the details of grounds which necessitated the arrest of the petitioner.” 9. In this instant case, the petitioner was given notice under Section 50 of the CrPC which is Pari Materia to Section 47 of the BNSS. The notice of information under Section 50 of the CrPC reveals that the petitioner was clearly informed under which case he was arrested and under which Sections of law, he was arrested and forwarded to custody. It was also mentioned that the Sections of the case are not bailable and he can pray for bail before the Court and before whom he was produced. Page No.# 6/7 10. Nowhere in the petition it is mentioned that the grounds of arrest were not communicated to the petitioner effectively in the language which he understands. 11. It has also been observed in Vihaan Kumar vs. State of Haryana & Another reported in SLP No. 13320 of 2024 on 07.02.2025 that : “...Therefore, it follows that the grounds of arrest must be informed in a language which he arrestee understands. That is how, in the case of Pankaj Bansal, this Court held that the mode of conveying the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. However, under Article 22(1), there is no requirement of communicating the grounds of arrest in writing. Article 22(1) also incorporates the right of every person arrested to consult an advocate of his choice and the right to be defended by an advocate.....” 12. In the instant case, it is apparent that the grounds of arrest were communicated to the petitioners in writing. It is pertinent to mention that the petitioner has not agitated through his petition that the grounds of arrest although communicated to him in writing, were vague and the petitioner could not understand that he was arrested in connection with this case for carrying Yaba tablets and suspected brown sugar and therefore, he had every right to apply for bail as the offences were not bailable. 13. Trial Court Record also reveals that the petitioner was duly represented by a Lawyer and trial is progressing. The petitioner has introduced new submissions and tried to take the privilege at such a belated stage when 6 (Six) out of 19 (Nineteen) witnesses have already been examined. 14. Thus, in short, it cannot be held that Section 50 of the CrPC was not complied with. Moreover, the petitioner is facing trial and he did not raise his grievance when charges were framed against him or when he had moved for Page No.# 7/7 bail earlier. 15. At this juncture, it appears that there is no violation of Article 21 and 22 of the Constitution of India. Section 37 of the NDPS Act so far as this case is concerned, acts as an embargo. At this juncture, it cannot be conclusively held that the petitioner’s right to liberty has been curtailed despite the fact that trial is dragging with a leaden feet. This Court is hesitant to grant bail to the petitioner at this stage. The offence alleged against the petitioner is grave in nature. It is trite law that in serious offences of this nature, the length of detention is not a ground for bail. 16. The petition stands rejected at this stage. However, the petitioner is at liberty and subsequently apply for bail if trial is procrastinated by the State or by the Court. 17. The Trial Court is directed to expedite the trial for speedy disposal of the case. JUDGE Comparing Assistant