Page No.# 1/8 GAHC030001672025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./8/2025 Sh. Lallianthanga S/o. Lalrindika, R/o.Zokhawmawi (Tlau, Falam District, Myanmar VERSUS Union of India R/b. Asst. Commissioner, Customs Division, Aizawl Advocate for the Petitioner : Mr Laltanpuia Advocate for the Respondent : Mr. Johny L Tochhawng ORDER BEFORE HONOURABLE MR. JUSTICE NELSON SAILO 08.05.2025 Heard Mr. Laltanpuia, learned counsel for the applicant and Mr. Johny L. Tochhawng, learned Special Public Prosecutor for the respondent. By filing this application under Section 483 of the BNSS read with Section 37 of the ND&PS Act, 1985, the applicant prays for his release on bail. The applicant was arrested Page No.# 2/8 on 04.07.2023 in connection with seizure of 4378 grams of suspected Methamphetamine at Hotel Sangtea, Thuampui, Aizawl. Accordingly, Custom Case No. 01/CL/NDPS/AS/AZL/23 dated 04.07.2023 under Section 22(c)/23(c) of the ND&PS Act was registered and investigated into. Upon conclusion of the investigation, charge sheet was submitted on 03.11.2023 as a prima facie case was found to be established against the applicant. [2.] Prior to submitting the present bail application, the applicant submitted two (2) bail applications before the Special Court, ND&PS namely, Bail Application No. 502/2024 and Bail Application No. 29/2025. Both the applications were rejected vide orders dated 19.06.2024 and 04.02.2025 respectively. [3.] The learned counsel for the applicant submits that Section 42 of the ND&PS Act has been violated since no grounds of belief has been recorded on the search which was made after sunset. He submits that although hotel may be included as a public place but the room allotted to the guest cannot be considered as a public place. Therefore, the formalities required prior to entering the room in the hotel and conducting search having not been fulfilled by the investigating authority, the mandate of Section 42 of the ND&PS Act has been violated and the applicant should be released on bail. The learned counsel Page No.# 3/8 submits that so far, seven (7) out of the ten (10) prosecution witnesses has been examined by the prosecution and it is not known as to when the trial will be complete. The applicant having been in custody for more than one (1) year ten (10) months should be released on bail. In support is his submission, the learned counsels relies upon the following authorities:- (1) Sarija Banu Alias Janarthani Alias Janani & Anr. Vs. State Through Inspector of Police (2004) 12 SCC 266 and (2) Director of Revenue & Anr. Vs. Mohammed Nisar Holia (2008) 2 SCC 370 [4.] Per contra, Mr. Johny L. Tochhawng, learned Special Public Prosecutor submits that the trial is almost over now and only three (3) witnesses remain to be examined by the prosecution. He submits that PW-10 has been summoned to give his evidence on 22.05.2025 and it is only within a short period of time that the trial will be concluded and therefore, bail should not be granted at this stage. He also submits that since the applicant is also a Myanmarese national, there is every likelihood of absconding in the event he is released on bail and therefore bail should be rejected on this ground as well. The learned Public Prosecutor further submits that as per the explanation given in Section 43 of the ND&PS Act, a hotel is included within the definition of a public place. The Page No.# 4/8 authorities concerned soon after receiving the information about the selling/dealing of Methamphetamine tablets likely to happen in the hotel concerned and after reducing the same into writing located the applicant and another person entering the hotel. Upon following them and upon asking their credentials, in the presence of two (2) civilian witnesses, their belongings were searched and wherefrom, they recovered 4378 grams of suspected Methamphetamine tablets which they intended to sell for profit. He further submits that as per Section 37 of the ND&PS Act, in case of recovery of drugs/contraband substance of commercial quantity, bail may be granted only after notice has been issued to the Public Prosecutor and opportunity is given for objecting the bail. Further bail may be granted by the court on being satisfied that there are reasonable grounds to believe that the person arrested is not guilty of the offence and is not likely to commit a similar offence while on bail. Under the facts and circumstances in the present case, it cannot be said that the applicant is not guilty of the offence he is charged with and therefore, bail should not be granted to him. In support of his submission, the learned Special Public Prosecutor has relied upon the following authorities:- (1) Union of India Vs. Rattan Mallik Alias Habul (2008) 2 SCC 370 and (2) Union of India Vs. Shiv Shankar Kesari (2007) 7 SCC 798 Page No.# 5/8 [5.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. The learned counsel for the applicant has submitted that Section 42 of the ND&PS Act has been violated. Section 42 of the ND&PS Act deals with the power to enter, seizure, search and arrest without warrant or authorization. The empowered officer if he has the reason to believe or has to the information that any narcotic drug or psychotropic substance or controlled substance punishable under the Act has been committed, he shall take down the same in writing and thereafter enter into and search any such building, conveyance or place etc., and may detain or arrest any such person. The second proviso under Section 42 (1) of the ND&PS Act further provides that if the authorized officer has the reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for concealment of evidence of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of belief. [6.] In the present case, search and recovery appears to have been made at about 9:30 pm on 04.07.2023. The learned counsel for the applicant has submitted that since information was received at 6:00 o’clock in the evening, Page No.# 6/8 the arresting authority ought to have recorded the grounds of belief before proceeding to make search and arrest. It may be seen that the officer who made the arrest on 04.07.2023 had indeed made an Information Report and also made a gist of it. He was also examined as PW-1 in the trial conducted against the applicant. In his evidence, he has stated that on 04.07.2023 at about 9:30 pm, he and the officer on duty match the description of the information entering the hotel Sangtea in Thuampui, Aizawl. They immediately followed the suspected persons with two (2) independent witnesses from a nearby locality where the suspected the two (2) persons entered the hotel room. They introduced themselves and asked the two (2) persons to introduced themselves. The suspected persons identified themselves and on checking the content of the bag and belongings, 4378 grams of suspected Methamphetamine was recovered. [7.] The explanation under Section 43 of the ND&PS Act provides that public place includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public. The learned counsel for the applicant has tried to impress upon the Court that hotel may be a public place but the room of the hotel may be a public place as per the judgment of the Apex Court in the case of Director of Revenue & Anr. Vs. Mohammed Nisar Holia (supra). However, Page No.# 7/8 in the instant case, materials available on record go to show that the applicant and another person had just entered the hotel concerned and were immediately followed by the Custom personnels who identified themselves to them. It therefore cannot be said for sure that the room had been indeed allotted to the applicant and the other person and that they had checked in after completing due formalities. Further, the arresting authority had also taken down in writing the information received by him about the likely sale of some quantity of contraband suspected to be Methamphetamine to happen at Hotel Sangtea by two (2) Burmese nationals. The applicant admittedly is a Burmese national and the apprehension of him jumping bail is found to be relevant. [8.] It may further be noticed that out of the ten (10) prosecution witnesses, seven (7) prosecution witnesses had already been examined and the next date for the examination of PW-10 has been fixed as 22.05.2025. It therefore appears that the trial is likely to be concluded in the near future. Also, from the materials available on record, it cannot be presumed that there exist reasonable ground for believing that the applicant is not guilty of the offence alleged against him and that he is not likely to commit any offence while on bail. [9.] Thus, upon due consideration of the application and the materials available on record, this Court is not inclined to grant bail to the applicant. Page No.# 8/8 Accordingly, the bail application stands rejected. It is however made clear that the discussions made herein above are for the purpose of considering the instant bail application and should not effect the conclusion to be made in the trial. JUDGE Comparing Assistant