Page No.# 1/5 GAHC010248022023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3987/2023 SARJU CHETRY AND ANR SON OF SRI DILIP CHETRY, RESIDENT OF VILLAGE- 9TH MILE NEPALI BOSTI, P.S. MANJA, DISTRICT- KARBI ANGLONG, ASSAM 2: SRI BISHAL CHETRY SON OF LATE HASTA BAHADUR CHETRY PERMANENT RESIDENT OF VILLAGE- KANGLATONGBI SHANTIPUR P.S. SEKAMI IMPHAL MANIPUR PRESENT ADDRESS- VILLAGE- CHOTOLONKHO NEPALI BOSTI P.S. UMRANGSHO DISTRICT- HAFLONG ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY P.P., ASSAM Advocate for the Petitioner : MR. A CHAUDHURY, MR. P K DAS,MR. D BORA,MR. N MAHAJAN Advocate for the Respondent : PP, ASSAM, Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.04.2025 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 petitioners, namely, 1. Sri Sarju Chetry and 2. Sri Bishal Chetry, who has been detained behind the bars since 22.05.2025 (for last more than 1 year 10 months) in connection with NDPS Case No. 50/2023 arising out of Dillia P.S. Case No. 42/2023 under Sections 18(c)/29 of the NDPS Act, 1985 pending in the Court of the learned Special Judge, NDPS, Karbi Anglong, Diphu. 3. The gist of accusation in this case is that, on 22.05.2023, one Nitul Saikia, SI of Police, had lodged an FIR before the Officer-in-charge of Dillia Police Station, inter alia, alleging that on that day, an information was received through reliable sources regarding transportation of suspected opium by two persons from Sarihajan side. Accordingly, a search team was constituted and a naka checking was organized at Dillia Tiniali. On the same day, at about 3:30 PM, one passenger vehicle (Magic Vehicle) bearing registration No. AS-09-AC- 1602, was intercepted and the present petitioners were apprehended therefrom. When they were searched, from their black colour airbags, suspected opium weighing about 10.124 kg was recovered. On receipt of this said FIR, Dillia P.S. Case No. 42/2023 was registered and investigation was initiated. Ultimately, on completion of the investigation, charge-sheet was laid under Sections 18(c)/29 of the NDPS Act, 1985. 4. The learned counsel for the petitioners has submitted that the petitioners are languishing behind the bars for more than 1 year 10 months. Page No.# 3/5 However, the trial is yet to culminate and till date out of 7 listed prosecution witnesses only 5 witnesses have been examined. He, therefore, submits that the petitioners are entitled to get bail on the ground of prolonged incarceration. 5. The counsel for the petitioners has further submitted that in the instant case, there has been violation of the constitutional as well as statutory mandate of furnishing the grounds of arrest to the petitioners at the time when they were arrested. He submits that in the notice under Section 50 of the Code of Criminal Procedure, 1973, which was served on the petitioners at the time of their arrest, no grounds of arrest was mentioned therein. He submits that apart from the police station case number as well as the penal provisions involved in the offence, no grounds of arrest have been mentioned. 6. The learned counsel for the petitioners also submits that in view of the observations of the Apex Court made in the case of “Vihaan Kumar –Vs- State of Haryana and Anr.”, reported in “2025 SCC OnLine SC 269”, not complying with the constitutional as well as statutory mandate of furnishing the grounds of arrest to an accused at the time of his arrest, vitiates the arrest itself and thereafter, once the arrest is held to be illegal, the accused cannot be detained any longer in the case in which he has been arrested. 7. On the other hand, the learned Additional Public Prosecutor has submitted that as regards the submissions of the learned counsel for the petitioners regarding prolonged incarceration is concerned, he submits that in the instant case, same may not be applicable as the trial is on the verge of completion and only two witnesses are there to be examined. However, he fairly submits that the notices which was served on the petitioners at the time of their arrest does not contain any grounds of arrest. Page No.# 4/5 8. I have considered the submissions made by the learned counsel for both the sides. 9. In this case, the facts are such that the petitioners are entitled to get bail also on the ground of prolonged incarceration. However, even if we don't take that into consideration, the violation of constitutional as well as statutory mandate of furnishing the grounds of arrest to the petitioners which is apparent on perusal of the notice served on them under Section 50 of the Code of Criminal Procedure, 1973, makes it clear that their arrest was illegal due to violation of the constitutional mandate as well as statutory mandate. 10. 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.” 11. In this case also, as the arrest of the petitioners itself gets vitiated due to violation of the constitutional mandate under Article 22(1) of the Constitution of India as well as statutory mandate under Section 50 of the Code of Criminal Procedure, 1973 as well as 52 of the NDPS Act, 1985, the petitioners are entitled to be released on bail. 12. For the reasons discussed herein above, both the above named petitioners are allowed to go on bail up to Rs.50,000/- (Fifty Thousand) each Page No.# 5/5 with two sureties of like amount subject to the satisfaction of the learned Special Judge, NDPS, Karbi Anglong, Diphu, with the following conditions:- i. That the petitioners shall cooperate in the trial of NDPS Case No. 50/2023, which is pending in the Court of the learned Special Judge, NDPS, Karbi Anglong, Diphu; 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 persons 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 petitioners; iv. That the petitioners shall provide their 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 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 petitioners shall submit their leave address and contact details during such leave before the Trial Court; vi. That the petitioners shall not commit any offence while on bail; 13. With the above observations, this bail application is disposed of. JUDGE Comparing Assistant