Page No.# 1/6 GAHC010267912024 2025:GAU-AS:4661 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3868/2024 KAMLESH KUMAR S/O SANTRAM R/O VILL- LAHAR KANAR,P.O. PIPARI, GAHARWAR, P.S. SARSA KALAR, DIST. JALAUN, UTTAR PRADESH-285125 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, NARCOTIC CONTROL BUREAU (NCB) Advocate for the Petitioner : MR G J SAIKIA, MR. M BISWAS,S K DAS,J SINGPHO Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 11.04.2025 Heard Mr. M. Biswas, learned counsel for the petitioner and Ms. M. Deka, learned counsel appearing on behalf of NCB. 2. By filing this application U/S 483 of the BNSS, 2023, the petitioner, namely, Kamlesh Kumar, has sought for bail in connection with NDPS Case No.26/2022 Page No.# 2/6 (corresponding to NCB Crime No. 20/2021) 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. The factual matrix leading to the bail application is that on 06.08.2021, the NCB team of Guwahati got information from reliable source that two persons namely Goswami Dharmendar Ramnageshwar and Kamlesh Kumar i.e., present petitioner would be carrying a huge quantity of Ganja which was concealed in a truck bearing No. GJ-20-U-6697. Accordingly, a search was conducted and the NCB team intercepted the truck. During search, 275.29 Kgs of Ganja were recovered from the roof top of the truck which was seized and the accused persons including the petitioner were arrested accordingly. 4. The learned counsel for the petitioner has submitted that the petitioner has been languishing in judicial custody for more than three and half years since his arrest on 07.08.2021. Though, charge sheet was filed on 21.09.2022, however, charge was framed on 26.06.2023. It is unfortunate that out of seven cited witnesses in the offence report, the NCB is able to examine only one witness in the case. 5. It is further submitted that it is trite law that prolonged incarceration as an under trial and inordinate delay in the trial infringes the fundamental rights of an accused guaranteed under Article 21 of the Constitution of India. 6. By referring the judgement of Rabi Prakash Vs. State of Orrisa reported in (2023) 0 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 Page No.# 3/6 incarceration. 7. The main thrust of argument for the learned counsel for the 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. Per contra, Ms. Deka, has submitted that as the matter relates to commercial quantity of Narcotic Drugs, Section 37 of the NDPS Act is attracted. However, she has admitted that the grounds of arrest have not been mentioned in the Section 50 Cr.P.C. (U/S 47 BNSS) notice. 10. I have considered the submission of the learned counsel for the parties and also perused the Trial Court record. 11. Regarding prolonged incarceration, admittedly, the accused petitioner was arrested on 07.08.2021 i.e., he has been detained in custody for more than three and half years. Charge was framed on 26.06.2023. After that more than two and half years have been elapsed but the prosecution has failed to complete the trial. 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 from the side of the NCB regarding such delay of process of trial. It Page No.# 4/6 is pertinent to say here that within this three and half years, out of seven witnesses only one witness is examined till date. 12. In the case of Vihan Kumar (Supra), the view taken in the case of Pankaj Bansal reported in (2024) 7 SCC 576 and in the case Prabir Purkayastha (Supra) was reiterated by the Hon’ble Apex Court which is reproduced as follows- “28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the “grounds” of “arrest” or “detention”, as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would Ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest. 29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22 (5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-complinace of this constitutional requirement and statutory mandate would lead to custody or the detention being rendered illegal, as the case may be.” 13. In the case of Vihaan Kumar (Supra), it is specifically stated that 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 Page No.# 5/6 power of the Court to grant bail when the violation of Article 21 and 22 is established. 14. 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 Cr.P.C. 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. 15. In the case in hand, as it appears from the Section 50 Cr.P.C. notice issued to the petitioner by NCB dated 07.08.2021 which is as follows- “You are hereby informed that you are arrested in connection with above reference case and the case is non-bailable. So, you are forwarded to the Court. You may submit petition before the Hon’ble Court for your bail.” 16. From the aforesaid notice issued to the petitioner vide NCB case No.20/2021, it reveals that no grounds of arrest has been informed to the petitioner as alleged which is mandatory in nature. 17. The accused namely, Kamlesh Kumar, 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. 18. The direction for bail is further subject to the following conditions that the accused petitioner- Page No.# 6/6 a. shall not leave the territorial jurisdiction of the Additional Sessions Judge No.2, Kamrup (M), Guwahati, Assam without prior written permission from him/her till disposal of the case. b. shall regularly attend the trial Court and cooperate with the Court for early disposal of the case. 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