Page No.# 1/12 GAHC030006062025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./41/2025 Sh. Abdul Kalam Laskar S/o Nijam Uddin Laskar, Uttar Mohanpur, P.S Sonai, Cachar District, Assam VERSUS The State of Mizoram Aizawl Advocate for the Petitioner : Lubna Choudhury Advocate for the Respondent : P.P./Addl.PP, Mizoram B E F O R E HON’BLE MRS. JUSTICE MARLI VANKUNG ORDER 15.09.2025 Heard Ms. Lupna Choudhury, learned counsel for the petitioner. Also heard Ms. Vanneihsiami, learned Additional Public Prosecutor for the State respondents. 2. The instant application is filed u/s 483 of the Bharatiya Nagarik Suraksha Page No.# 2/12 Sanhita (BNSS) 2023 r/w section 37 of the ND& PS Act, seeking grant of bail to the applicant/petitioner on the arrest of the petitioner on 11.06.2023, on the seizure of 5.810 kgs of suspected heroin and therefore, charged with u/s 21 (c) of the ND&PS Act in Sessions Registration Case No. 278/2023. 3. Ms. Lupna Choudhury, learned counsel for the accused/petitioner submits that the accused/petitioner was arrest on 11.06.2023 wherein 5.810 kgs of suspected heroin was seized from the Ashok Leyland Truck bearing registration No. AS 11EC 5636 travelling from Champhai to Aizawl which was intersected on 10.06.2023. Thereafter, the suspected heroin was seized along with the Ashok Leyland Truck and the co-accused MD Nazimul Hussain Barbhuiya, who was the truck driver along with the accused/petitioner Abdul Kalam Laskar being the handyman of the said vehicle and co-accused Kutbul Alom Laskar, said to be the owner of the seized article were arrested . 4. The learned counsel submitted that the accused/petitioner on his arrest on 11.06.2023 was not furnished his ground of arrest as mandated under section 50 Cr.PC (47 BNSS) & u/s 50 –A Cr.PC (Section 48 BNSS). She submitted that the non furnishing of the grounds of arrest is also the violation of fundamental rights of the accused/petitioner under Article 21 & 22 of the Constitution of India and therefore, is entitled to be released on bail. Page No.# 3/12 5. The learned counsel had relied on the judgment of the Apex Court in the case of Vihaan Kumar Vs. State of Haryana & Anr. reported in (2025) INSC 162 as well as Prabir Purkayastha Vs. State (NCT Delhi) reported in (2024) 8 SCC 254, where the Apex Court had also held that there is a difference between reasons for arrest and grounds of arrest and that the accused should be informed of this ”grounds of arrest.” The learned counsel submitted that the non-compliance of the mandatory provisions of law vitiates the arrest and detention of the accused/petitioner and as such it is a sufficient ground for grant of bail notwithstanding the vigorous of Section 37, in the ND&PS Act. The learned counsel led this court to the seizure and arrest memo annex as Annexure-II wherein, the date and time of the arrest has been mentioned along with place from where the seized articles and found and also the details of the seized article, however, there is no mention of to the provision of law under which the accused/petitioner has been charged. 6. The learned counsel further submits that the accused/petitioner has been incarcerated and languishing in jail since his arrest on 11.06.2023 and has completed 2 years, 2 months & 6 days as on 29.08.2025, awaiting for the completion of the trial wherein, the charge sheet submitted on 22.07.2023. The learned counsel, submitted that out of the total of 14 prosecution witnesses, Page No.# 4/12 only 9 prosecutions has been examined till date and therefore, it is not likely that the trial against the accused/petition will be completed in the near future. She submitted that due to the long incarceration of the accused/petition, he may be granted bail. The learned counsel relied on the judgment of the Apex Court wherein, the Apex Court held that the rigorous on Section 37 of the ND&PS Act can be relax as the petitioner had spent 2 years from custody and cannot be held in indefinitely and thus granted bail in the case of Mahendra Vs. State of Rajasthan reported in 2024 Supreme (online) (SC) 12367. She therefore submitted the principle of parity may be followed and the accused/petitioner may also be granted bail. 7. The learned counsel for the accused/petitioner also submitted that the co- ordinate bench of this court in Mohammed Nazimul Hussain Barbhuiya Vs. State of Mizoram in Bail Appln. No. 25/2025 dated 14.07.2025 on had granted bail to the co-accused Mohammed Nazimul Hussain Barbhuiya who was the driver of the vehicle from where the seized contraband article was seized and the alleged rightful owner of the seized article was the co-accused Kutbul Alom Laskar who was released on bail on 29.07.2025 in Bail Appln. No 29/2025. 8. The learned counsel for the accused/petitioner also submitted that this is Page No.# 5/12 the second time the accused/petitioner apply for release on bail before this court and submitted that this court in Bail Application No. 68 of 2024 dated 14.10.2024, had rejected the bail application of the accused/petitioner by observing that the learned Trial Court should made an attempt to disposed of the connected Criminal Crime Trial No. 1381/2023 in expeditiously preferably within a period of 6 months considering the fact that the trial had taken more than one year and only one prosecuting witness has been examined till date. She submitted that in spite of this court order to disposed of the Criminal Trial No. 1381/2023 preferably within a period of 6 months till date as many as 5 prosecution witnesses still remain to be examined and considering that the accused/petitioner has completed 2 years, 2 months & 6 days in jail, he may be released on bail. 9. Ms. Vanneihsiami, learned Addl. Public Prosecutor on the other hand has strongly objected for the release of the petitioner on bail by submitting that the seized contraband substance is of a huge quantity and since the accused/petitioner is the person who had handed over the contraband substance which was hidden in his vehicle truck Ashok Leyland bearing Registration No. AS-11-EC-5636. It is clear that he was well aware that the contraband substance was put in the said vehicle. The learned counsel therefore submitted that there cannot be parity with the co-accused Mohammed Nazimul Page No.# 6/12 Hussain Barbhuiya, who was granted bail since the co-accused was the driver of the vehicle while the present accused, who is the handyman who had kept the contraband substance in the said vehicle. In support of the submission, the learned counsel has relied on the judgment of the Apex Court in the case of Aashish Yadav Vs. Yashpal & Ors., reported in (2025) SCC Online SC 1100 wherein, the Apex Court had observed that the court had failed to consider that the accused was the main accused in the matter and cannot be enlarged on bail because the other co-accused persons had been granted bail and had erred in mechanically passing the order for grant of bail on the principle of parity. 10. The learned Addl. Public Prosecutor has also relied on the judgment of the Apex Court in the case of Tarun Kumar Vs. Assistant Director Directorate of Enforcement reported in (2023) SCC Online SC 1486 wherein, the Apex Court had held that parity is not the law and while applying the principal of parity, the court is required to focus upon the role attached to the accused whose application is under consideration. 11. The learned Addl. Public Prosecutor submitted that the accused/petitioner by removing the contraband substance which was hidden in the vehicle and handling over the same to the Seizing Officer proves that the accused/petitioner Page No.# 7/12 is guilty of the charge u/s 21 (c) of the ND&PS Act since he was well aware that the contraband substance was hidden in the Ashok Leyland vehicle bearing Registration No. AS-11-EC-5636. 12. The learned Addl. Public Prosecutor has also referred to Section 27 of the Indian Evidence Act by submitting that the accused/petitioner by handing over the seized article from the vehicle where it was hidden had voluntarily given the required information to the Seizing Officer and therefore, the seizure of the seized article is proved and it is likely that he will be convicted u/s 21 of the ND&PS Act. 13. The learned Addl. Public prosecutor further submitted that the accused petitioner is not a native of the state and if released on bail there is every likelihood that he would abscond during trial. 14. I have considered the submission made by the learned counsels for both the parties and I have also perused documents on record. 15. This court finds that the main ground taken by the accused petitioner for his released on bail is that the mandatory provisions u/s 50 Cr.PC and Section 50 - A Cr.PC had not been followed and therefore due to the said non-compliance, there is non-compliance with the Constitutional & Fundamental Rights of the accused person guaranteed under Article 21 & 22 (1) of the Constitution of Page No.# 8/12 India. 16. This court has perused the seizure and arrest memo dated 11.06.2023, a copy of which was duly furnished to the accused person. It is also noted that the Co-ordinate bench of this court in bail application No. 25/2025 dated 14.07.2025 had granted bail to the co-accused Mohammed Nazimul Hussain Barbhuiya, who was the driver of the vehicle from where the seized article of 5.810 kgs of suspected heroine was seized. The Coordinate Bench of this court while referring to the said Seizure and Arrest memo dated 11.06.2023 had opined as follows: “ Reading the aforesaid, it indicates that except for noting the details of the seizure made and the arrest of the joint possessor of such contraband articles, including the accused/ petitioner, nothing else so as to constitute the basic facts constituting the grounds of arrest of the accused/petitioner is mentioned. That apart , no other materials have been produced before this court by the learned Additional Public Prosecutor, Mizoram, to indicate that the accused/petitioner has been informed of the grounds of his arrest. Apposite that when the grounds for non-compliance of the constitution obligations under Article 21(1) of the Constitutional of India are urged, the burden lies on the prosecution to show that the petitioner/accused/arrestee has been duly informed of the grounds of Page No.# 9/12 arrest. In the instant case, the prosecution has relied upon the seizure and search memo to show that there has been a compliance with Article 22(1) of the Constitution of India; however, as is evident from above, the search and seizure memo is too vague so as to provide sufficient knowledge of the facts for which the accused/petitioner has been arrested. Hence, the prosecution has miserably failed to show that the grounds of arrest have been informed to the accused/petitioner as mandated under Article 22(1) of the Constitution of India.” 17. The learned Trial Court has also preferred to the judgment of the Apex Court in Vihaan Kumar (Supra) wherein the Apex Court had observed that the non-compliance with requirement of Article 22(1) may be violation of the fundamental rights of the accused and also would amount to violation of right to personal liberty guaranteed under Article 21 of the Constitution of India and held that this statutory restrictions do not fit the power of the court to grant bail while violation of Articles 21 & 22 of the Constitution is established. Accordingly, the accused petitioner was granted bail. 18. It is also seen that this court in Bail. Appl. 29/2025 dated 29.07.2025 had granted bail to the co-accused Kutbul Alom Laskar who was said to be the Page No.# 10/12 rightful owner of the seized contraband substance who was granted bail on the principle of parity since the co-accused Mohammed Nizamul Hussain Barbhuiya was granted bail on 14.07.2025 in Bail Appln. 25/2025. Thus this court considering the fact that the driver of the vehicle Askok Leyland Truck from where the contraband substance was seized was released on bail along with the alleged rightful owner of the seized article Kutbul Alom Laskar, this court finds that the principle of parity would be applicable in the instant case even though the accused is stated to have taken out the seized articles from the hidden compartment in the vehicle Ashok Leyland Truck since the allegation in the instant case is that the rightful owner of the said seized articles as the co- accused Kutbul Alom Laskar who was released on bail on 29.07.2025 in Bail.Appl. No. 29/2025. This court has also considered the fact that the petitioner has been in custody for a period of 2 years, 2 months and 6 days as on 29.08.2025 and there still remain 5 prosecution witnesses to be examined. 19. It is noted that the Apex Court in Mahendra Vs. State of Rajasthan (Supra) had held that: “The petitioners has already spent two years in custody. The conclusion of trial will take some time. Having regard to the nature of allegations, it is seems to us that the rigors of Section 37 of the NDPS Act can be appropriately relaxed in the Page No.# 11/12 case of the petitioner as he cannot be incarcerated indefinitely till the conclusion of trial.” 20. It is also seen that the accused petitioner does not appear to have any criminal antecedents and therefore, considering the fact that the learned Co- ordinate Bench of this court and this court had granted bail to the other 2 co- accused person, one was said to be the rightful owner of the seized articles and in view of the judgment of the Apex Court in Mahendra Vs. State of Rajasthan (Supra), this court find it fit to grant bail to the accused petitioner Mr. Abdul Kalam Laskar with a bail bond of Rs. 50,000/- with one sureties of the like amount who shall be to the satisfaction of the learned Judge, Special Court, ND&PS Act, Aizawl subject to the following conditions: (i) That the accused/petitioner shall appear before the Court of learned Judge, Special Court, ND & PS Act, Aizawl, Mizoram, on each and every date to be fixed by the Court; (ii) That the accused/petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. (iii) That the accused/petitioner shall submit his Page No.# 12/12 Aadhar Card and PAN Card before the learned Judge, Special Court, ND&PS Act, Aizawl Mizoram; and (iv) That the petitioner shall not leave the jurisdiction of the learned Judge, Special Court, ND& PS Act, Aizawl, Mizoram. Without prior permission. 21. Accordingly, Bail Appln. No. 41/2025 stands allowed and disposed of. JUDGE Comparing Assistant