Page No.# 1/6 GAHC010237202024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3445/2024 KOYES AHMED @ KOYES AHMED MAHAMMOD S/O MOJIR ALI @ MAJIR UDDIN R/O VILL-KHAGALL, P.S. KARIMGANJ DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. A CHAUDHURY, MR. N MAHAJAN,MR. P K DAS Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 09.04.2025 1. Heard Mr. B. K. Mahajan, learned counsel for the petitioner. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor for the State. 2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Koyes Ahmed @ Koyes Ahmed Mahammod, who has been detained behind the bars since 06.02.2024 (for last 1 year 2 months and 2 Page No.# 2/6 days) in connection with Special (NDPS) Case No. 17/2024 corresponding to Ram Krishna Nagar P.S. Case No. 21/2024 under Sections 21(c)/25/29 of the NDPS Act, 1985. 3. The gist of accusation in this case is that, on 05.02.2024, one D. Basumatary had lodged an FIR before the Officer-in-Charge of Ram Krishna Nagar Police Station, inter alia, alleging that on receipt of an information was received from one Patha Pratim Das, Superintendent of Police over telephone that huge quantity of drugs is being transported from Hailakandi to Karimganj via Chararpar and accordingly, a police team was constituted and at about 8:40 PM a surprise naka checking was organized at Chararpar near Bazar. After some time, one vehicle bearing Registration No. MZ-01-N-0063 coming from Bhairabnagar side was intercepted. The said vehicle was driven by the petitioner and was accompanied by a co-driver, namely, Mahobub Hussain. When the said vehicle was searched, 52 nos. of shop cases were recovered there from. The said shop contains 611.27 grams of heroin. On receipt of the said FIR, Ram Krishna Nagar P.S. Case No. 21/2024 was registered under Sections 21(c)/25/29 of the NDPS Act, 1985 and the investigation was initiated. Ultimately on completion of investigation, charge-sheet was laid against two accused persons including the present petitioner under aforesaid provisions of law. 4. The learned counsel for the petitioner has submitted that though the petitioner has been languishing behind the bars for last more than 1 year 2 months and though the charges were framed on 18.01.2025, however, till date not even a single witness has been examined in this case. He submits that the petitioner is, therefore, entitled to get bail on the ground of prolonged incarceration. Page No.# 3/6 5. The learned counsel for the petitioner has submitted that in the instant case, there has been a violation of constitutional mandate as well as statutory provisions regarding furnishing the grounds of arrest to the accused at the time of his arrest. He also submits that though the notice under Section 50 of the Code of Criminal Procedure, 1973 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. He also submits that the notice under Section 50 of the Code of Criminal Procedure, 1973 furnished to the petitioner contained only the Police Station case number in connection with which the arrest was made, i.e., Ram Krishna Nagar P.S. Case No. 21/2024 as well as the penal provisions involved in the case i.e., Sections 21(c)/25/29 of the NDPS Act, 1985 and nothing apart from the aforesaid facts was stated in the said notice. 6. The learned counsel for the petitioner has also submitted that in the instant case, there is also violation of the constitutional provisions as well as statutory mandate in not furnishing the grounds of arrest and the information of the arrest to their relative of the accused under Section 50A of the Code of Criminal Procedure, 1973. He also submits that furnishing the grounds of arrest to the accused as well as to the relatives of the accused at the time of his arrest is a constitutional mandate and any violation of the said constitutional mandate would make the arrest itself illegal and if the arrest is vitiated, the petitioner can no longer be detained behind the bars. In support of his submissions, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “Vihaan Kumar –Vs- State of Haryana and Anr.”, reported in “2025 SCC OnLine SC 269”. 7. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the ground of Page No.# 4/6 prolonged incarceration as he submits that this case involves commercial quantity of contraband and, therefore, embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He also submits that the period of detention undergone by the petitioner is not long enough to treat it as prolonged incarceration to give him the benefit of bail in this case. 8. However, he fairly submits that the notice served on the petitioner under Section 50 of the Code of Criminal Procedure, 1973, does not contain any grounds of arrest. It only contains police station case number and the penal provisions involved in this case. 9. I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of the records of Special (NDPS) Case No. 17/2024. 10. Though, the petitioner is detained behind the bars for more than 1 year 2 months in this case, and though not even a single witnesses has been examined, however, considering the quantity of contraband recovered in this case, this Court is of opinion that the period of detention already undergone by the petitioner may not be regarded as long enough so as to grant benefit of bail on the prolonged incarceration. 11. However, as regards the submissions made by the learned counsel for the petitioner regarding violation of constitutional mandate as well as statutory provisions regarding furnishing the grounds of arrest to the present petitioner is concerned, a bare perusal of the notice issued to the petitioner under Section 50 of the Code of Criminal Procedure, 1973, it appears that the same contained only the police station case number, and the penal provisions involved in this case and nothing apart from that is stated in the said notice it contains no Page No.# 5/6 ground of arrest. Further scanned copy of the records also does not show that any notice under Section 50A of the Code of Criminal Procedure, 1973 has been served on any of the relatives of the present petitioner. 12. The Apex Court in the case of “Vihan Kumar Vs. State of Haryana and Another” (supra) has observed as follows: “20. 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) has been made. The reason is that due to noncompliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights.” 13. In view of the above, this Court is of considered opinion that as in the instant case, the requirement of furnishing of grounds of arrest has not been complied with and which his constitutional mandate under Article 22(1) of the Constitution of India as well as statutory mandate of Section 52 of the NDPS Act, 1985 and Sections 50 and 50A of the Code of Criminal Procedure, 1973, the petitioner cannot be detained behind the bars any longer and he is entitled to get bail on that ground. 14. For the reasons stated, the petitioner, namely, Koyes Ahmed @ Koyes Ahmed Mahammod, is entitled to be released on bail and accordingly, he is allowed to go on bail of Rs.2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a resident of the State of Assam) subject to the satisfaction of the learned Special Judge, Sribhumi, with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 17/2024, which is pending in the Court of the learned Special Judge, Sribhumi; Page No.# 6/6 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, 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; vi. That the petitioner shall not commit any offence while on bail; 15. With the above observations, this bail application is disposed of. JUDGE Comparing Assistant