Page No.# 1/9 GAHC030006572025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./42/2025 Sh. David Lala S/o Lallianzauva, Zokhawmawi (Tiau), Falam District, Myanmar, P/A Zokhawthar, Champhai District VERSUS Union of India R/b Asst./Dy.Commissioner, Anti-Smuggling Unit, Aizawl Customs Division Aizawl Advocate for the Petitioner : Mr Nei Chunga Darlong Advocate for the Respondent : Mr. Johny L Tochhawng BEFORE HONOURABLE MR. JUSTICE RAJESH MAZUMDAR JUDGMENT / ORDER Date : 13-11-2025 Heard Mr. Nei Chunga Darlong, learned counsel for the applicant and Mr. Johny L. Tochhawng, learned Special P.P for the respondents. 2. The present application has been filed by the applicant under Section 483 of the BNSS read with section 37 of the ND&PS Act, 1985 with prayers to enlarge the petitioner on bail in connection with Sessions Registration Case No. 440/2023 A/o Custom Case No. 01/CL/NDPS/AS-AIZ/23 dated 04.07.2023 Page No.# 2/9 under sections 22(C) & 23(c) of the NDPS Act, 1985. 3. The brief facts of the case is that the applicant was placed under arrest on 05.07.2023 at about 0800 hrs at the Customs Divisional Office, Chanmari, Aizwal in connection with Custom Case No. 01/CL/NDPS/AS-AIZ/23 dated 04.07.2023 under sections 22(C) & 23(c) of the NDPS Act, 1985. The Officers of Anti- Smuggling Unit, Customs Division, Aizawl received information on 04.07.2023 at about 1800 hours that 2 Myanmarese persons would be coming to a hotel from Aizawl on the night of July 2023 with the intention to sell some contraband drugs to unknown purchases or buyers. The officers of the Anti-Smuggling Unit along with officials of Mizoram Police waited at the hotel and at around 2130 hours, 2 persons matching the information entered the hotel. After checking the jute bag, which was found in the room occupied by the two persons, four packets containing further 20 smaller packets were recovered. The contents of the 20 small packages were weighed. In a preliminary test of the recovered tablets with a drug testing kit, the test indicated positive for methamphetamine. 4. The petitioner herein and one Lallianthanga were arrested on 05.07.2023 at about 0800 hours at Customs Divisional Office, Chanmari, Aizawl under section 42/43 of the NDPS Act, 1985 on a reasonable belief that they had committed offence punishable under Section 8(c), 22 & 23 of the NDPS Act, 1985. The scanned copy of the CD and the complaint sheet in the connected case reveals that the petitioner herein had been produced before the learned CJM, Aizawl Judicial District, Aizawl on 05.07.2023 itself. On an application for remand of the petitioner and the co-accused being made by the Inspector (Anti- Smuggling Unit), Customs Division, Aizawl on behalf of the Union of India, the petitioner and the co-accused were remanded to judicial custody for 48 hours in Page No.# 3/9 the custody of the customs. The investigation thereafter continued in the matter and upon conclusion, the charge-sheet was submitted on 03.11.2023. 5. Prior to the moving of the present bail application, the petitioner had submitted B.A No. 213/2025 before the Court of the Judge, Special Court of NDPS, Aizawl Judicial District, Aizawl which came to be rejected by the order dated 27.08.2025. The order dated 27.08.2025 records that previous bail application bearing registration No. 504/2024 and 1275/2024 preferred by the petitioner herein had been rejected by orders dated 14.06.2024 and 13.12.2024 respectively. Bail Application No. 213/2025 preferred before the Court of the Judge, Special Court of NDPS, Aizawl Judicial District, Aizawl, Mizoram (hereinafter referred to as Trial Court) was filed raising a grievance that the petitioner had not been informed about the grounds of arrest in writing and as such, gross violation of Article-21 and 22(1) of the Constitution of India had taken place. Placing reliance on the order dated 20.05.2025 passed in B.A No. 17/2025 by this Court, it was submitted on behalf of the petitioner that although the petitioner may be belonging to Myanmar, it is the settled position of law that foreigners are also to be given protection of Article-21 of the Constitution of India. By the order dated 27.08.2025 passed by the learned trial court, it was observed that the grounds of arrest had not been furnished to the accused/petitioner in writing but by placing the reliance in the case of Arun Khundongbam @ Nanao -versus- The Central Bureau of Investigation (B.A No. 1100/2025 decided on 09.05.2025), the learned Trial Court had rejected the bail application by holding that, so long as the accused had been informed about the arrest at the time when he was produced before the learned Trial Court within a period of 24 hours of such arrest, it would not be mandatory to intimate the grounds of arrest in writing to the accused in cases of arrests Page No.# 4/9 having been effected prior to the pronouncement of the judgment in Prabir Purkayastha -versus- State (NCT of Delhi) reported in (2024) 8 SCC 254. The learned trial court had referred to the judgment of the Apex Court in Pankaj Bansal -vs- Union of India and Others, reported in (2024) 7 SCC 576, wherein it was held that “henceforth, the grounds of arrest must be communicated in writing to the accused”, to observe that the same would be applicable only after the said decision was made on 03.10.2023. The learned trial court was not satisfied to release the accused/petitioner on bail on the ground of non-furnishing the grounds of arrest in written form to the accused. Aggrieved, this bail application has been filed under section 483 of BNSS, 2023. 6. Mr. Nei Chunga Darlong, learned counsel for the applicant has submitted that it is a settled position of law that while the provisions of statute are applicable prospectively unless specifically stated to be retrospective and judicial pronouncement act retrospectively unless specifically held to be applicable prospectively. The learned counsel for the petitioner has submitted that this Court did not specify in the judgment delivered in Pankaj Bansal (Supra) to be applicable prospectively and therefore, the direction passed in Pankaj Bansal (supra) would also have retrospective effect. He has submitted that in such view of the matter, non-furnishing of the grounds of arrest in writing to the petitioner at the time of arrest or during his production before the remand Magistrate have vitiated the arrest and therefore, the petitioner deserves to be set at liberty forthwith. 7. Per contra, the learned Special P.P appearing for the respondents has submitted that the contention raised in this bail application are wholly misconceived both in law and on facts. He has submitted that the petitioner had already preferred at least three applications before the learned trial court, all of Page No.# 5/9 which were rejected. He has further submitted that the specific use of the word ‘henceforth’ in the decision of the Apex Court in the case of Pankaj Bansal (supra) is indicative enough that the judgment was intended to be applied prospectively and not retrospectively. The learned Special P.P appearing for the respondent has further submitted that this Court in B.A No. 1100/2025 had observed that the judgment of Pankaj Bansal (supra) can be made applicable only after the said decision was rendered by the Apex Court on 03.10.2023. He has further submitted that the petitioner had been arrested in a room which contained contraband drugs which were recovered during the search and raid operation and therefore, it cannot be presumed that the petitioner did not know the grounds of his arrest. He has submitted that there is no violation of the Constitutional rights guaranteed under Article 21 & 22(1) of the Constitution of India and therefore, the present bail application deserves to be dismissed. He has further submitted that this Court had already rejected the prayer for bail to a co-accused by order dated 08.05.2025 in B.A No. 8/2025. He submitted that at least 7 out of the 10 prosecution witnesses had already been examined as on 08.05.2025 and therefore, it is apparent that the trial court is proceeding at the proper pace and is likely to conclude in the near future. He has further submitted that it cannot be presumed that there exist reasonable grounds for believing the applicant is not guilty of the offences alleged against him and that he is not likely to commit any offence while on bail. 8. The submissions made by the learned counsel have been considered by this Court. The scanned records of the case diary have been perused. The primary ground of the petitioner to seek the privilege of bail is that since he had not been supplied the grounds of arrest in writing, the provisions of Article 21 and 22(1) of the Constitution have been violated, thereby vitiating the very Page No.# 6/9 arrest and continued incarceration of petitioner. 9. A Co-ordinate Bench of this Court, in the case of Arun Khungdongbam @ Nanao has held that the case of Pankaj Bansal (supra) can be made applicable only to arrests made after the said decision was rendered by the Apex Court on 03.10.2023. This Court does not find any reason to differ, more so, since the Apex Court had qualified the directions for supplying the grounds for arrest in writing to the petitioner by the words “henceforth”. The Apex Court had in the case of Ram Kishore Arora -vs- Directorate of Enforcement, reported in (2024) 7 SCC 599 has held as follows: “23. As discernible from the judgment in Pankaj Bansal Case also noticing the inconsistent practice being followed by the officers arresting the persons under Section 19 of PMLA, directed to furnish the grounds of arrest in writing as a matter of course, “henceforth” meaning thereby from the date of the pronouncement of the judgment. The very use of the word “henceforth” implied that the said requirement of furnishing grounds of arrest in writing to the arrested person as soon as after his arrest was not the mandatory or obligatory till the date of the said judgment. The submission of the learned Senior Counsel Mr. Singhvi for the Appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states that it would be necessary “henceforth” that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. Hence non furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with.” 10. In view of the above, this Court does not find force in the submission that non-furnishing of the grounds of arrest in writing to the petitioner can be the sole ground for coming to a conclusion that the arrest of the petitioner in the present case suffered violations of provisions of Article 22(1). 11. However, since violation of Article 21 & 22(1) has been urged in the petition, this Court had required the learned Special P.P to apprise the Court the Page No.# 7/9 document on which the arresting authorities wish to rely upon to prove the compliance of Article 22(1) and also to produce a copy of the orders passed by the remand Magistrate for perusal. The learned Special PP has referred to the case diary annexed with the scanned copy of the charge-sheet and has also produced a copy of the order dated 05.07.2023 passed by the learned CJM before whom the accused were produced immediately after the arrest. 12. A perusal of the case diary does not reveal any entry to the effect that the petitioner had been informed in any manner about the grounds of his arrest. The orders passed by the learned remand Magistrate also do not reveal that the remand court had made attempts to verify that the mandates of Article 22(1) had been compiled while allowing the remand of the petitioner. The order of remand reveals that the learned Magistrate had merely quoted the prayers made by the arresting authority for remand of the accused and thereafter, had allowed all the prayers, with a single stroke of pen, by simply stating “Be it so”. The records produced do not reveal either that the petitioner was represented during the remand proceedings or that any bail application had been preferred. 13. Notwithstanding that the mandates of providing written grounds of arrest to the petitioner does not apply to the present case, this Court finds that there is no record to indicate that the petitioner had been informed about the grounds of arrest in any form, either by the arresting authority or by the learned court which remanded him to the custody of the arresting authority for a further period, since where after, the petitioner has been deprived of his right to liberty. There is no record to indicate that the petitioner was informed about the grounds of arrest and secondly, there is no record to indicate that he was afforded the opportunity to exercise his right to consult and to be defended by a legal practitioner of his choice. Therefore, in the peculiar circumstances of the Page No.# 8/9 case, this Court is of the opinion that the petitioner has suffered violations of his rights enshrined in Article 21 and Article 22(1) and the arrest of the petitioner is vitiated. 14. Having found so, this Court cannot ignore the fact that the Trial against the petitioner is proceeding at a good pace and also the fact that the petitioner is admittedly a resident of (Tiau), District Falam, Myanmar, with self-claimed temporary address at Zokhawthar, Champai District, Mizoram. The petitioner also claims to have “HRIATPUNIA” issued by the President, Village Council, Zokhawthar, where he claims to be living since 2014. A Co-ordinate Bench of this Court, while rejecting the bail petition of the co-accused, although for different reasons, had expressed that the applicant therein admittedly was a Burmese national and the apprehension of him jumping bail was found to be relevant. 15. In the present case, since for reasons recorded earlier, it has been held that the arrest of the petitioner is vitiated and the petitioner is entitled to be set at liberty, this Court deems it fit to provide that the petitioner, namely, David Lala, son of Lallianzauva, shall be allowed to go on bail in connection with Sessions Registration Case No. 440/2023 A/o Custom Case No. 01/CL/NDPS/AS-AIZ/23 dated 04.07.2023 under sections 22(C) & 23(c) of the NDPS Act, 1985 on furnishing bail bond of Rs 1,00,000/- (Rupees one lakhs) only with the two sureties of like amount, provided that one surety has to be a government servant and one surety shall be a permanent resident of Aizwal subject to the satisfaction of the learned Trial Court, subject to the following conditions: i. The accused/petitioner shall regularly appear before the learned Trial Court on all dates to be fixed from time to time Page No.# 9/9 till the case is disposed of; and 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/her from disclosing such facts to the Court; and iii. That the accused/petitioner shall not commit any offence similar to the one of which he is accused; and iv. That the accused/petitioner shall submit details of his “HRIATPUNIA” issued by the President, Village Council, Zokhawthar along with copy before the Trial Court, which will be subjected to verification; and v. That the accused/petitioner shall not leave the territorial jurisdiction of the learned Trial Court without prior permission; and vi. Any other conditions that the learned Trial Court may deem fit to ensure participation of the accused/petitioner in the Trial. 16. With the above directions, the bail application stands disposed of. JUDGE Comparing Assistant