Page No.# 1/8 GAHC030000752025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./5/2025 Sh. Vankhuma S/o. P.C. Rochharliana R/o. Durtlang Leitan, Aizawl VERSUS The State of Mizoram Aizawl Advocate for the Petitioner : Ms. Lalngaihsaki Fanai Advocate for the Respondent : P.P./Addl.PP, Mizoram ORDER B E F O R E Hon’ble MRS. JUSTICE YARENJUNGLA LONGKUMER 26.03.2025 Heard Ms. Lalngaihsaki Fanai, learned counsel for the petitioner and Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor for the State respondent. The present application has been filed u/s 482 of BNSS, r/w section 37 of ND&PS Act praying for released of the accused/applicant on bail. 2. Learned counsel Ms. Lalngaihsaki Fanai appearing for the accused/applicant has stated that the accused person was arrested on Page No.# 2/8 03.08.2023 for alleged involvement in connection with seizure of 2667 grams of suspected heroin along with co-accused Lalthazuala and was booked u/s 21 (c) of the ND&PS Act. And since then, the accused has been in custody. 3. Learned counsel has filed the instant application on the ground that there are gross violations of the mandatory provisions of the ND&PS Act and serious non-compliance of mandatory sections. Another ground taken by the applicant is that the accused is HIV positive and is having mental health issues and many other medical complications. 4. At the outset, the learned counsel for the applicant states that there is non-compliance of section 52(A) of the ND&PS Act as it is an admitted fact as per the evidence rendered by the Magistrate that there is no round seal of his office and no date was mentioned when the sample was drawn in his presence. Also while bunching the samples, each sample was not weighed individually and each of the sample was not tested by color testing kit. The Magistrate had also admitted that while drawing of samples was done before him, bunching was not done as per the ND&PS rules. The next contention of the applicant is that section 42 of the ND&PS Act has not been complied with in the present case. Learned counsel has submitted that it is evident from the charge-sheet that seizing officer received prior information on 03.08.2023 at around 12:30 pm. However, the seizing officer failed to report the information received as per the mandate of section 42 of the ND&PS Act. It is stated that the law in this regard has been settled by the Hon’ble Supreme Court in the case of Karnail Singh Vs State of Haryana (2009) 8 SCC 539 that if prior information is received when the police officer was in the police station with sufficient time to take action and if the police officer fails to record in writing the information received Page No.# 3/8 or fails to sent a copy thereof to the official superior, then, it will be a suspicious circumstances being a clear violation of Section 42 of the Act. That the compliance with the requirements of Section 42(1) & Section 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry, search and seizure by the officer. Therefore, in the instant case even though the prior information was received from an informant leading to the arrest of the present applicant, there is no information in writing by the seizing officer. It is also seen that there are no materials to show that the information received has been recorded before proceeding to arrest the applicant/petitioner. 5. The learned counsel for the applicant further submits that the arresting authority has violated section 50 of the ND&PS Act, since the applicant/petitioner was not asked as to whether he desires to be searched before a Gazetted Officer or before a Magistrate. Another ground taken by the applicant is that the grounds of arrest were not informed to the applicant/petitioner either orally or in written and such action is in gross violation of the constitutional mandate under Article 22(1) of the Constitution of India and Section 50 of the CrPC, 1973. 6. Learned counsel for the petitioner/applicant refers to the case of Sh. Lalbiakkima Vs State of Mizoram in Bail Appln./28/2023 passed by a Co-ordinate Bench of this Court in Order dated 08.08.2023 wherein it was observed by the Court that having regard to the mandatory nature of the compliance of Section 42 of the ND&PS Act and Section 42 being violated the accused/petitioner was granted bail by the Court. Learned counsel also refers to the case of PRABIR PURKAYASTHA Vs STATE (NCT OF DELHI) in Page No.# 4/8 Criminal Application No…. of 2024 wherein by an Order dated 15.05.2024, the Hon’ble Supreme Court has laid down that there is a difference in the phrase “reasons for arrest and grounds for arrest”. The Hon’ble Supreme Court came to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused/appellant or his counsel before passing the Order of remand which vitiates the arrest and subsequent remand of the appellant. And as a result, the appellant/accused was directed to be released from custody. Relying on the above cited case, the learned counsel for the petitioner/accused submits that the accused was never provided with the grounds of his arrest and therefore, there is violation of the provisions of Article 22 of the Constitution of India. 7. The learned counsel for the applicant has relied on the case of MANGILAL Vs THE STATE OF MADHYA PRADESH reported in 2023 LiveLaw (SC) 549 at paragraphs 5,6,7,8,14&15 to support the contention that when there is non-compliance of Section 52 of the ND&PS Act where a certification of a Magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence. The reason behind this provision is to inject fair play in the process of investigation and Section 52(A) of the ND&PS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn. Learned counsel also relies on the case of KANISHK SINHA & ANOTHER Vs THE STATE OF WEST BENGAL reported in SLP(Criminal) Nos. 8609-86147 of 2024 to support her argument that the Judgment of a Court will always be retrospective in nature unless the Judgment itself Page No.# 5/8 specifically states that the Judgment will operate prospectively. She has therefore stated that the Judgment of the Hon’ble Supreme Court in PRABIR PURKAYASTHA (Supra) will apply in the present case and therefore, the grounds of arrest should have been supplied to the applicant. Learned counsel has also relied on the case of Sarija B anu (A) Janarthani @ Janani And Vs State reported in (2004)12SCc266 where the Hon’ble Supreme Court has held that the compliance of Section 42 is mandatory and that is a relevant fact which should have engaged the attention of the Court while considering the bail application. The counsel for the applicant further submits that bail is the rule and jail is an exception which is a settled principle of law and has referred to the case of JALALUDDIN KHAN Vs UNION OF INDIA in Criminal Appeal No. 3137 of 2024. Further, learned counsel also raised the grounds of prolonged incarceration stating that this is against the Fundamental Right of the accused person guaranteed under Article 21 of the Constitution of India and this shall override the statutory embargo created under Section 37 of the ND&PS Act. In regard to this point, learned counsel relies on the case of Rabi Prakash Vs The State of Odisha reported in SLP(Crl.) No.4169/2023. Learned counsel for the applicant therefore prays that the accused maybe released on bail pending the completion of trial. 8. Mrs. Mary L. Khiangte, learned Addl. Public Prosecutor appearing for the State respondent has opposed the arguments made by the applicant on the ground that all the mandatory provisions of the ND&PS Act have been complied with in the present case. She has also stated that the information received by the seizing officer has been taken down in writing and the same was sent to the Superior Officer vide letter dated 04.08.2023 which can be seen at page 19, 20 & 21 in the petition. Learned Addl. Public Prosecutor has also stated that arrest Page No.# 6/8 intimation was given to the relatives of the accused person and the accused had also duly signed in the arrest memo appending his signature which can be seen at page 26(a) & 26(c) in the present bail application. Learned Addl. Public Prosecutor further submits that even assuming but not admitting that mandatory provisions of the Act have not been complied with, this is a matter to be decided by the learned Trial Court upon adducing evidence and cannot be considered at the stage of bail. Learned Addl. Public Prosecutor states that the trial is proceeding before the learned Trial Court and is likely to be completed soon and therefore, the present application may be dismissed at this stage. As regards the health problems of the accused person, the learned Addl. Public Prosecutor states that there are enough medical facilities in the jail and also many under trials and convicts who are HIV positive and the jail authorities are giving them adequate medical attention. In respect of the allegation of violation of Section 52(A) of the ND&PS Act, the learned Addl. Public Prosecutor has referred to the case of Narcotics Control Bureau Vs Kashif reported in 2024 SCC Online SC 3848. At para 39 of the aforementioned judgment, the Hon’ble Supreme Court has said that any lapses or delay in compliance of Section 52 (A) by itself would neither vitiate the trial nor entitled the accused to be released on bail. Learned Addl. Public Prosecutor therefore submits that even lapses in compliance of Section 52 (A) of the ND&PS Act would not entitle the accused to be released on bail. 9. The Court has observed that in the present case there is no serious violation under Section 52(A) of the ND&PS Act as the only error was that the round seal of the Magistrate was not present in the inventory and the Hon’ble Supreme Court has held in the case of Narcotics Control Bureau(Supra) that any lapses in compliance of Section 52(A) by itself would not vitiate the trial nor Page No.# 7/8 entitled the accused to be released on bail. As far as the Judgment of Sarija Banu (Supra) relied upon by the learned counsel of the petitioner is concerned, it is seen that the facts of the present case are different from the cited Judgment in asmuchas prima facie, the report of seizing officer in written is available on record and the report to the Superior Officer is also enclosed in the petition. Report to the Superior Officer dated 04.08.2023 is also available in the records. 10. This Court has given due consideration to the submissions made by the learned counsels and the records available before the Court have been perused in detail. In a bail petition under Section 37 of the ND&PS Act, where seizure of commercial quantity contraband is involved, this Court is bound by the two conditions for bail:- 1) that the Public Prosecutor should be heard. 2) and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 11. In the present case, the Public Prosecutor has been duly heard and therefore, the first condition is complied with, as far as the second condition is concerned, it is seen that there is a prima facie case against the accused/applicant and this Court is of the view that there are no reasonable grounds for believing that the accused is not guilty of the offence as charged. As far as the allegations of violation of mandatory provisions of the ND&PS Act are concerned, this Court is of the view that such allegations cannot be raised at the stage of bail as these are matters of facts which will be decided by the Trial Page No.# 8/8 Court after adducing evidence. The issue of grounds of arrest not being supplied to the accused can also be raised during the trial. The Court while considering a bail application would not like to go into the merits of the case. It is also seen from the records that the trial had already commenced and three prosecution witnesses have been already examined till date and there are only five prosecution witnesses to be examined in the present case and it is expected that the trial will proceed expeditiously without any delay. 12. In view of the above discussion and the facts and circumstances of the instant case, this Court is not inclined to grant bail to the accused person at this stage and the application is accordingly dismissed. 13. The learned Trial Court is directed to complete the trial expeditiously and also direct the Jail Authorities to take care of the medical condition of the accused/applicant to the best of their abilities. 14. Any statements made regarding the merits of the case are purely prima facie observations and shall not have any persuasive effect on the Trial Court while finally deciding the case. 15. A copy of this Order may be sent to the learned Trial Court. JUDGE Comparing Assistant