Page No.# 1/5 GAHC040016872025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : BA/122/2025 Smti Deepmala Chetry resident of Longding, Block Colony, HQ, Tirap, Arunachal Pradesh. VERSUS The State of AP through the PP of AP Advocate for the Petitioner : Tailang Laji, Hage Tai Advocate for the Respondent : P P of AP, BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 12.12.2025 Heard Mr. M. Kamcham, learned counsel appearing for the applicant. Also heard Mr. D. Loyi, learned Public Prosecutor for the State respondent. 2. This is an application under Section 438 of the Bharatiya Nagarik Suraksha Sanhita, 2023, praying for release of the accused under Sections 21(b)/27(a)/29 of the NDPS Act. 3. The gist of the case, as has been narrated in the FIR dated 07.04.2025, is Page No.# 2/5 that on receipt of certain telephonic information, the police team went to the Civil Secretariat building, Itanagar. It was alleged that information was received from the secretary that the accused person came to the Secretariat for selling of certain narcotic drugs and on suspicion, the accused person was, in fact, confined in the bathroom of the Secretariat till the police team reached there. A search was made by the police, and on search of the bathroom, the police did not recover anything from the bathroom and the person. However, though nothing was recovered from the bathroom, but on search of the body of the accused person, 8(eight) plastic vials containing suspected heroin were found, and on further investigation and questioning, the police recovered 18 (eighteen) more plastic vials hidden behind the bathroom window. The police seized those banned narcotic substances, and the accused was arrested on the same date i.e., on 08.04.2025 and since then, the accused is behind the bars for more than 8(eight) months and 8(eight) days. 4. On receipt of the FIR, the police registered Itanagar P.S. Case No. 55/2025 under the aforementioned sections of NDPS Act. After completion of the investigation, the police filed the charge-sheet No. 175/2025 dated 25.06.2025. Thereafter, charges under Section 21(b) of NDPS was framed against the accused by an order dated 13.08.2025 by the learned Special Judge (NDPS), Yupia. 5. The learned counsel appearing for the accused submits that the accused is not linked to any activities of purchasing, selling and peddling of narcotic drugs. He submits that the accused was detained in the bathroom and thereafter, arrested by the police on mere suspicion. He submits that the accused was nowhere linked to hiding anything in the bathroom and only on suspicion he has been arrested. He further submits that since the police has already completed Page No.# 3/5 the investigation, charge-sheet has been filed and charges have been framed, his further custodial detention may not be required in the instant case, since he has already spent more than 8(eight) months and 8(eight) days behind the bars. 6. The learned counsel appearing for the accused further submits that there is a violation of the mandates of the BNSS, while arresting the accused, as the accused was not properly served the Arrest Memo as well as Notice under Section 50 of the BNSS. He submits that while issuing the notice under Section 50 of the BNSS, no grounds have been mentioned in the aforesaid notice. Further, he submits that no grounds were mentioned in the Arrest Memo also. 7. In view of the violation of Section 50 of the BNSS, he submits, that the whole process of arrest of the accused is illegal and his personal liberty which is his fundamental right is under Article 21 and 22(1) of the Constitution of India being violated, he should be immediately allowed to go on bail. 8. In this connection, he has referred to the case of Mihir Rajesh Shah vs. State of Maharashtra & Anr., reported in 2025 Supreme (Online) (SC) 9939, wherein the Hon’ble Apex Court has specifically held that grounds of notice under Section 50 of the BNSS to be given to the accused immediately after his arrest and not later than 2(two) hours before production of the accused before the Magistrate. 9. He submits that in the instant case since no proper notice under Section 50 of the BNSS has been given providing the grounds of arrest to him while he was arrested, the arrest becomes illegal in view of the ratio held by the Hon’ble Supreme Court in the aforesaid case of Mihir Rajesh Shah (supra) as well as the statutory mandates under Section 50 of the BNSS, 2023. Page No.# 4/5 10. In view of the aforesaid, the learned counsel submits that since the accused has already spent more than 8(eight) months and 8(eight) days and the quantity which has been alleged to have been recovered from him is of intermediate quantity weighing 7.4 grams, which is at lesser side of intermediate quantity, he should be allowed to go on bail at this stage. 11. On the other hand, Mr. D. Loyi, learned Public Prosecutor for the State respondent submits that TCR has been received and there are incriminating materials which prima facie points fingers to the guilt of the accused and therefore, at this stage, the accused should not be granted bail. 12. This Court has gone through the materials brought before this Court as well as the TCR that has been received from the Court of learned Special Judge (NDPS), Yupia. From the bare perusal of the notice under Section 50 of the BNSS, it is seen that no grounds of arrest have been provided to the accused at the time of arrest which is in non-compliance of the mandates of Section 50 of the BNSS, 2023. This Court has also observed that the quantity that has been recovered is of 7.4 grams of heroin which is of intermediate quantity. Therefore, the rigours of Section 37 of the NDPS Act, shall not be applicable in the instant case. This Court is also of the notice that the accused has been arrested on 08.04.2025 and he is behind the bars for more than 8(eight) months and 8(eight) days. 13. Taking consideration of the ratio laid down by the Hon’ble Supreme Court in the case of Vihaan Kumar vs. State of Haryana & Anr., reported in (2025) SCC Online SC 269 as well as the recent judicial pronouncement of the Hon’ble Supreme Court in the case of Mihir Rajesh Shah (supra), this Court is prima facie convinced that the principles laid down by the aforesaid Page No.# 5/5 cases by the Hon’ble Apex Court have not been adhered to by the arresting authority while arresting the accused in connection with Itanagar P.S. Case No. 55/2025. 14. After taking into account the whole matter in its entirety and on consideration of the fact that the rigours of Section 37 of the NDPS Act shall not be applicable in the instant case, this Court is of the considered opinion that the accused person should be released on bail at this stage. 15. Accordingly, it is directed that the accused shall be released forthwith on bail bond of Rs. 30,000/- (Rupees thirty thousand) only with one surety of like nature to the satisfaction of the learned Special Judge (NDPS), Yupia, Papum Pare District, subject to the following conditions: (i) That the accused shall co-operate with the proceedings of the Trial Court and make himself available as and when he is required to be present before the Trial Court; (ii) That the accused shall not try to influence any witness or try to temper or hamper the trial proceedings; (iii) That the accused shall not leave the jurisdiction of the learned Special Judge (NDPS), Yupia, without prior permission from the aforesaid Court. 16. Accordingly, the instant bail application is disposed of as allowed. 17. TCR to be sent back immediately. JUDGE Comparing Assistant