Page No.# 1/6 GAHC010264992024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3836/2024 ABDUL MUKIT S/O ABDUL WAHID R/O VILL- SURJADAS, KALIGANJ, P.S. KARIMGANJ DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 09.04.2025 1. Heard Mr. H. R. Choudhury, 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, Abdul Mukit, who has been detained behind the bars since 31.08.2024 in connection with Special NDPS Case No. 51/2024 corresponding to Page No.# 2/6 Badarpur P.S. Case No. 134/2024 under Sections 21(c)/25/29 of the NDPS Act, 1985 pending before the Court of learned Special Judge, Sribhumi. 3. The gist of accusation in this case is that, on 15.05.2024, one J. Borah, SI of Police had lodged an FIR before the Officer-in-Charge of Badarpur Police Station, inter alia, alleging that an information was received from the Additional Superintendent of Police (HQ), Karimganj to the effect that a goods carrier truck bearing Registration No. AS-01-JC-6796 coming from Mizoram side is carrying huge quantity of illegal contraband and accordingly a search team was constituted and a naka checking was organized. During checking, the aforesaid vehicle was intercepted and the said vehicle was driven by one Siyab Uddin. On search of the said vehicle, total 1220 grams of suspected heroin was recovered from the said vehicle. During the course of investigation on the basis of statement made by the co-accused, the present petitioner was also arrested on 31.08.2024, i.e., about three months after filing of the FIR. 4. The learned counsel for the petitioner has submitted that the petitioner is in no way involved in the offence alleged in this case. He also submits that apart from the confession of the accused as well as the statement of the co-accused, no other materials are there to implicate the present petitioner in the instant case. He also submits that the charge-sheet mentions the reasons for implicating the present petitioner are that the co-accused Siyab Uddin has implicated him and the CDR analysis shows that the location of the present petitioner was also found to be almost similar as that of the arrested co-accused Siyab Uddin. 5. The learned counsel for the petitioner submits that, even if, for the argument sake, it is admitted that the location of the petitioner was found to be similar to that of the main accused Siyab Uddin that in itself cannot be a ground to link the present petitioner with the contraband recovered in this case. Page No.# 3/6 6. The learned counsel for the petitioner has further submitted that in the instant case there has been a violation of constitutional mandate of furnishing the grounds of arrest to the petitioner at the time of his arrest as no notice under Section 50 of the Code of Criminal Procedure, 1973 or any grounds of arrest under Section 52 of the NDPS Act, 1985 was furnished to him at the time of his arrest. 7. The learned counsel for the petitioner has also submitted that at the time of forwarding of the present petitioner to the Court of the learned Chief Judicial Magistrate after his arrest, the only documents enclosed with the forwarding report were the medical examination report of the present petitioner, the accused challan as well as interrogation chart, however, it does not mention about the notice under Section 50 or 50A of the Code of Criminal Procedure, 1973. 8. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the ground that the quantity of contraband seized in this case is of commercial quantity and, therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He also submits that apart from the statement of the co-accused Siyab Uddin, the analysis of CDR shows that the petitioner was in constant contact with the main accused Siyab Uddin and he had telephoned him on several occasions. He also submits that the petitioner was also found in the same location where the main accused was there on the date when the dealings of the contraband was made. 9. However, the learned Additional Public Prosecutor has fairly submits that after going through the case diary, he fails to locate the notice under Section 50 of the Code of Criminal Procedure, 1973 or Section 50A of the Code of Criminal Procedure, 1973. 10. I have considered the submissions made by the learned counsel for both Page No.# 4/6 the sides and have gone through the materials available on record. 11. In the instant case, nothing has been recovered from the possessions of the present petitioner. The materials which incriminates the petitioner in this case are in the form of the statement of the co-accused recorded under Section 67 of the NDPS Act, 1985, which is not admissible as evidence in an offence under NDPS Act in view of the decision of the Apex Court in the case of “Tofan Singh –Vs- The State of Tamil Nadu” reported in (2021) 4 SCC 1”. The other materials which is the prosecution claims to be there against the petitioner is the CDR analysis which indicates that he was in constant touch with the main accused from whose possessions the contraband was recovered as well as it also shows that he was present in the same location where the main accused was found at the time when the dealings in contraband was reported to have been made. 12. This in the considered opinion of this Court is not sufficient to link the petitioner with the contraband recovered in the instant case. 13. Moreover, in the instant case, the requirement of furnishing the grounds of arrest to the petitioner at the time of his arrest could not be shown to have been complied with by the arresting authority as no such notice under Section 50 or 50A of the Code of Criminal Procedure, 1973 appears to have been furnished to the petitioner at the time of his arrest. 14. The Apex Court in the case of “Vihaan Kumar –Vs- State of Haryana and Anr.”, reported in “2025 SCC OnLine SC 269” 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 Page No.# 5/6 obligation of all the Courts to uphold the fundamental rights.” 15. In the instant case, there is nothing on record to show that the grounds of arrest were furnished to the petitioner at the time of his arrest which itself makes his arrest illegal and, therefore, he can no longer be detained behind the bars. 16. For the reasons mentioned hereinabove, the petitioner, namely, Abdul Mukit, is entitled to be released on bail and accordingly, he is allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh only) with one sureties of like amount 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. 51/2024, which is pending in the Court of the learned Special Judge, Sribhumi; 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; Page No.# 6/6 vi. That the petitioner shall not commit any offence while on bail; 17. With the above observations, this bail application is disposed of. JUDGE Comparing Assistant