Page No.# 1/6 GAHC010266422024 2025:GAU-AS:4399 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3844/2024 GURVINDER SINGH S/O MASTAN SINGH R/O LANE NO. 1058, GURUDWARA NAMKMATTA, NANAUTA, UDHAM SINGH NAGAR, P.S. NAMAKMATTA, UTTARKHAND-262311 VERSUS THE UNION OF INDIA REP BY SC, NCB ZONAL UNIT, GUWAHAT. Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,S K DAS,J SINGPHO Advocate for the Respondent : PP, ASSAM, SC, NCB BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 08.04.2025 Heard Mr. M. Biswas, learned counsel for the petitioner and Mr. K. Jain, learned counsel representing the NCB. 2. By filing this second application U/S 483 of the BNSS, 2023, the petitioner namely Gurvinder Singh has sought for bail in connection with Page No.# 2/6 NDPS Case No.08/2023 (corresponding to NCB Case No.20/2022) U/S 20(b)(ii)(C)/ 29 of the NDPS Act, pending in the Court of learned Additional Sessions Judge No.2, Kamrup (M), Guwahati 3. On receipt of an information by the NCB, Guwahati that one person namely Mohd. Arif would be carrying a huge quantity of ganja from Agartala to Bihar which he had concealed in a truck bearing no. UK-06-CA- 7169. Accordingly, NCB team intercepted the said truck in Khanapara Flyover at Basistha Chriali and recovered 297.520 Kg of ganja from the said truck. Thereafter, the said recovered item was seized and the said Mohd. Arif arrested. 4. The learned counsel for the petitioner has submitted that no any contraband item was recovered from the possession of the petitioner. It has been recovered from Mohd. Arif. The accused petitioner was arrested on the basis of the statement recorded U/S 67 of the NDPS Act of the co- accused which is an inadmissible piece of evidence. 5. It is further submitted that the petitioner has been languishing in judicial custody for more than 2 years since his arrest on 26.09.2022. Out of 10 witnesses only one witness was examined by the Trial Court till date. 6. By referring the judgement of Rabi Prakash Vs. State of Orrisa reported in (2023) Supreme SC 707 and Dhiraj Kumar Shukla Vs. State of UP reported in SLP (CRL) 6690/2022, learned counsel for the petitioner has pointed out that the accused persons were released on bail by the Apex Court due to prolonged incarceration. 7. The main thrust of argument for the learned counsel for the Page No.# 3/6 petitioner is that no grounds of arrest was communicated to the petitioner in the notice served upon him U/S 50 Cr.P.C. (U/S 47 BNSS) as well as no notice was served to his representative U/S 50(A) Cr.P.C (U/S 48 BNSS) which are mandatory in nature. 8. On that issue, learned counsel has relied on the following case laws- a. Prabir Purkaystha Vs. NCT of Delhi (2024) 8 SCC 254. b. Vihaaan Kurmar Vs. State of Haryana and another reported in (2025) SCC Online (SC) 269. 9. Mr. Jain, learned counsel has submitted that this is the second bail application filed by the petitioner. The first bail application was rejected by this Court and at that time the petitioner did not raise the point regarding irregularities committed by the NCB while issuing notice U/S 50 Cr.P.C. Once the chage sheet has been laid the question of grant of bail has to be considered and decided only with reference to the merits of the case vide the judgment of the Hon’ble Supreme Court reported in (2024) 3 SCC 734 (CBI Vs. Kapil Wadhawan and another). 10. By referring the judgement of NCB Vs. Kashif vide (2024) SCC online SC 3848 Mr. Jain has pointed out that the Hon’ble Supreme Court has determined the fact for granting bail in case of NDPS Act in paragraph 39 of the said case. Accordingly, the learned counsel representing the NCB has prayed for dismissal of the bail application. 11. I have considered the submission of the learned counsel for the parties and also perused the Trial Court record. Page No.# 4/6 12. Regarding prolonged incarceration admittedly, the accused petitioner was arrested on 26.09.2022 i.e, he has been detained in custody for more than two and half years. Charge was framed on 30.03.2023. After that two years have been elapsed but the prosecution has examined only one witness out of cited 10 witnesses in the charge sheet. It is true that prolonged incarceration may not be a ground to release the accused on bail but which has some limitation. There is no explanation on the side of the NCB regarding such delay of process of trial. It is also not in dispute that the alleged contraband was recovered from the possession of one Mohd. Arif. 13. It is pertinent to say here that in the case of Kapil Wadhawan (Supra), it was discussed regarding statutory right of default bail U/S 167 Cr.P.C. which is not applicable in the instant case. Coming to the case of Kashif (Supra) the Hon’ble Supreme Court has stated that while considering the application for bail, the Court must bear in mind the provision of Section 37 of the NDPS Act which are mandatory in nature. However, in the case of Vihaan Kumar (Supra) it is specifically stated when violation of Article 22(1) is established, it is the duty of the Court to order the release of the accused and 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. 14. In the case in hand, as it appears from the Section 50 Cr.P.C, notice issued to the petitioner by NCB dated 26.09.2022 which is reproduced as follows- Page No.# 5/6 “You are hereby informed that you are arrested in connection with above reference case and the case is cognizable and non-bailable. So you are forwarded to the Court. You may submit petition before the Hon’ble Court for your bail.” 15. From the aforesaid notice issued to the petitioner vide case No.20/2022, it reveals that no grounds of arrest has been informed to the petitioner as alleged which is mandatory in nature. 16. In view of the aforesaid legal proposition, it can be said that an arrested person must be informed of the ground of his arrest and detention which is mandatory in nature. Admittedly, in the case in hand, there is no reflection in the arrest memo or the Section 50 notice issued to the petitioner that the grounds of arrest was being informed to the petitioner at the time of his arrest. Accordingly, the petitioner is entitled for bail. 17. The accused namely, Gurvinder Singh, shall be released on bail on furnishing a bail bond of Rs.2,00,000/-(Rupees Two Lakhs) with two sureties of the like amount out of which one of the surety must be Government employee in the State of Assam, to the satisfaction of the learned Additional Sessions Judge No.2, Kamrup (M), Guwahati, Assam. 18. The direction for bail is further subject to the following conditions that the accused petitioner- a. shall not leave the territorial jurisdiction of the learned Additional Sessions Judge No.2, Kamrup (M), Guwahati, Assam without prior written permission from him/her till disposal of the Page No.# 6/6 case. b. shall regularly attend the trial Court and cooperate with the Court for early disposal of the trial. 19. The learned Additional Sessions Judge, No.2, Kamrup (M), Guwahati, Assam is at liberty to impose any other condition(s) as it deems fit and proper at the time of releasing the accused/petitioner on bail to procure his attendance during trial. 20. The observation made by this Court is for the purpose of this bail application only, not on merits of the case. 21. In terms of the above, this bail application stands disposed of. JUDGE Comparing Assistant