Page No.# 1/11 GAHC010182402025 2025:GAU-AS:14237 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2674/2025 PRABHA SHANKAR TIWARI S/O- SWAMI DAYAL TIWARI,R/O- VILL-551K/252,BHILAIRAM,P.S/P.O- ALAMBAGH,LUCKNOW,UTTAR PRADESH-226005 VERSUS THE UNION OF INDIA REPRESENTED BY SC, NCB REP. BY THE STANDING COUNSEL NARCOTICS CONTROL BUREAU (NCB). Advocate for the Petitioner : MR. R MAJUMDAR, MS N KHATUN Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 24.10.2025 Heard Mr. R. Mazumdar, learned counsel for the accused and Mr. S. C. Keyal, learned Standing Counsel for the respondent/NCB. 2. This application, under Section 483 BNSS, 2023, is preferred by the accused Prabhu Shankar Tiwari, who has been languishing in jail Page No.# 2/11 hajot, in connection with NDPS Case No. 49/2022, pending before the court of learned Additional Sessions Judge No. 2, Kamrup (M) at Guwahati, arising out of NCB Guwahati Crime No. 25/2021, registered under Sections 8(c)/20(b)(ii)(C)/29 of the NDPS Act, 1985, for grant of bail. 3. It is to be noted here that the above noted case has been registered on the basis of one FIR, lodged by one Anil Kushwaha, Intelligence Officer, Narcotics Control Bureau, Guwahati Zonal Unit, Guwahati, on 05.09.2021. 4. The essence of allegation, made in the said complaint, is that on 05.09.2021, at about 03.00 am, near Madanpur Toll Plaza, Kamrup (R) the complainant and other staffs of NCB, acting on a tip off, have intercepted one truck bearing registration No. UP 32 HN 9008, and recovered 18989 bottles of Codeine based Phensydyl cough syrup, manufactured by Abbott Healthcare Pvt. Ltd, Village-Bhatauli, Solan, Himachal Pradesh, and apprehended accused Imran and Kamal Kumar. Thereafter, on 24.09.2021, while the present accused Shri Prabhu Shankar Tiwari came to Guwahati and was waiting at Railway Station, Guwahati in the evening, NCB team apprehended him and arrested on 25.09.2021, and forwarded him to jail hazot. Then after investigation, final complaint has been laid before the court of learned Sessions Judge, Kamrup (M), Guwahati against the present accused along with two others to stand trial in the Court under Sections 21(c) & 29 of NDPS Act. 5. Mr. Mazumdar, learned counsel for the accused submits that the Page No.# 3/11 accused was arrested on 25.09.2021, and since then, he has been languishing in jail hajot, for more than 4 years. Mr. Mazumder further submits that this bail petition is preferred on the ground of length of detention. He submits that as many as 11 witnesses have been cited in the final complaint, out of which, only 4 witnesses have been examined so far. Further, Mr. Mazumdar submits that charge was framed against the accused on 07.03.2022 and since then, almost 3 years elapsed and till date only 4 witnesses have been examined and that the place, at which the trial is proceeding, there is no immediate chance of completion of trial and that, there is considerable delay in trial and thereby, the right of the accused guaranteed under Article 21 of the Constitution of India is violated an as such, the accused is entitled to bail. 5.1. Mr. Mazumdar also submits that the second ground of filing this present bail application is that the ground of arrest was not communicated to the accused at the time of his arrest. Drawn the attention of this Court to the Notice u/s 50 Cr.P.C., which is annexed to the petition as Annexure No. 3, at Page No. 14 and Mr. Mazumdar submits that perusal of the same would indicate that the grounds of arrest has not been communicated to the accused and as such, the arrest of the accused is in contravention of the principle of law, laid down by the Hon’ble Supreme Court in the case of Vihaan Kumar Vs. State of Haryana, reported in (2025) 5 SCC 799. 5.2. Referring to one bail application of this Court, being Bail Appln. No. 1600/2025, especially the order, dated 02.06.2025; and another bail application, being Bail Appln. No. 3844/2024, especially the order Page No.# 4/11 dated 08.04.2025; Mr. Mazumdar submits that considering the length of detention, this Court was pleased to grant bail to the accused in both the abovementioned cases and under such circumstances, Mr. Mazumdar has contended to allow this petition. 6. Per contra, Mr. Keyal, learned Standing Counsel for the NCB, submits that the respondent NCB has filed objection petition herein and that the contraband substances recovered from the possession of the co-accused are of commercial quantity and the offences are serious, and there is nothing on the record to show that the accused is not guilty of the offence and that he will not commit any offence while on bail. 6.1. Mr. Keyal also submits that though the grounds of arrest have not been mentioned in the Notice u/s 50 CrPC (Annexure-3 of the petition), yet the accused has been furnished with a copy of the Memo of Arrest, dated 25.09.2021 (Annexure – 2, at page No. 13 of the petitioner) and there, details of the offence committed by the accused including the Section under NDPS Act have been mentioned and the same has been communicated to the relatives of the accused also. 6.2. Referring to a decision of the Hon’ble Supreme Court in the case of State of Karnataka Vs. Sri Darshan Etc., reported in 2025 0 Supreme (SC) 1201, especially to paragraph No. 20.1.3., Mr. Keyal submits that neither Article 22(1) of the Constitution of India nor Section 50(1) CrPC, prescribes a specific form or insists upon written communication in every case and judicial precedents have clarified that substantial compliance with these requirements is sufficient, unless Page No.# 5/11 demonstrable prejudice is shown. 6.3. Referring to Paragraph No. 20.1.4, Mr. Keyal submits that in the case of Vihaan Kumar (Supra), the Hon’ble Supreme Court has reiterated that Article 22(1) is satisfied, if the accused is made aware of the arrest grounds in substance, even if not conveyed in writing. 6.4. Referring to Paragraph No. 20.1.5, Mr. Keyal submits that Section 50 Cr.P.C is mandatory and the consistent judicial approach has to adopt a prejudice-oriented test when examining alleged procedural lapses and mere absence of written grounds does not ipso facto renders the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend. 6.5. Referring to Paragraph No. 20.4.1, Mr. Keyal submits that mere filing of a charge-sheet does not confer an indefeasible right to bail and likewise, the mere prospect of a prolonged trial cannot, by itself, outweigh the gravity of the offence, the incriminating materials gathered during investigation, or the likelihood of tampering with the witnesses. 6.6. Further, referring to Paragraph No. 20.4.6. of the said decision, Mr. Keyal submits that mere filing of the charge sheet, existence of a long list of witnesses, or the possibility of delay in trial, cannot, by themselves, constitute valid reasons to dilute the gravity of the offence or to disregard the case put forth by the prosecution and such factors cannot be a ground for granting bail in heinous offences. 6.7. Mr. Keyal further submits that though the Notice u/s 50 CrPC (Annexure – 3) does not indicate the grounds, yet if the same is Page No.# 6/11 perused along with Memo of Arrest, copy of which is enclosed with the petitioner as Annexure – 2 and also furnished to the petitioner goes to show that in substance, the provision of Article 22(1) of the Constitution of India is complied with. 6.8. Further, Mr. Keyal submits that this is the fourth bail application filed by the accused and the earlier bail applications were rejected by this Court and from this fact, it cannot be averred that the petitioner is not aware of the grounds of arrest and besides, the petitioner has failed to demonstrate any prejudice caused to him because of non- furnishing the ground of arrest in the Notice under Section 50 of the CrPC and the offences are serious in nature and under such circumstances, it is contended to dismiss this petition. 7. 7. Having heard the submissions of the learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the decisions, relied upon by the learned counsel for both the parties. 8. The Notice, issued u/s 50 CrPC and the Memo of arrest issued to the accused, extracted herein below for appreciation of the rival contention of the parties. “NOTICE U/S 50 Cr.P.C. Shri : Prabha Shankar Tiwari S/o : Swami Dayal Tiwari Village : 551K/252, Bhilawan Post Office : Alambagh Police Station : Alambagh Distt. : Lucknow, Uttar Pradesh Case No. : 25/2021 Page No.# 7/11 U/S : 8(C),21(C)and 29 of NDPS Act. You are hereby informed that you are arrested in connection with the above reference case and the case is cognizable and non-bailable. So, you are forwarded to the Court. You may submit petition before the Hon'ble Court for your bail. Signature of Arrestee Signature of I.O. ANIL KUSHWAHA Intelligence Officer Narcotics Control Bureau Guwahati Zonal Unit, Guwahati” 9. The Memorandum of Arrest, reads as under - “MEMORANDUM OF ARREST NCB F.NO. 07/163/Enf/Phensedyl/NCB/Ghv/2021 In consequence of/connection with the recovery and seizure of 18989 bottles of codeine based cough syrup with brand name "Phensedyl" from a truck bearing reg. no. UP 32HN 9008 at under Section: 42 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) on 05.09.2021 at the office of NCB, Guwahati Zonal Unit. I do hereby arrest Prabha Shankar Tiwari aged about 51 years, S/o- Swami Dayal Tiwari, R/o- 551K/252, Bhilawan, P.S.-Alambagh, Lucknow, Uttar Pradesh - 226005 under Section 43 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) on 25.09.2021 at 1900 hrs at the office of Narcotics Control Bureau, Guwahati Zonal Unit. On reasonable belief/prima facie proof that the said articles/documents handed over by Prabhu Shankar Tiwari are liable to confiscation under Section: 60 & 61 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) and the aforesaid Prabha Shankar Tiwari is liable to proceedings under Section: 8 (c) to be read Page No.# 8/11 with 21 (c) & 29 of The NDPS Act, 1985 (as amended) for contravention of the provisions of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) which have already been duly explained to him/her. The aforesaid arrested person is being forwarded to the competent authority within twenty four hours hence for his/her remand to judicial/jail custody. Given under my hand and SEAL: Signature with date Name & designation : …………………. Seal ……… To, Prabha Shankar Tiwari (51 yrs) S/o-Swami Dayal Tiwari, R/o-551K/252, Bhilawan, P.S.-Alambagh, Lucknow, Uttar Pradesh-226005.” 10. Perusal of the aforesaid two documents, being Annexure Nos. 2 & 3; indicates that though there is no specific ground mentioned in the Annexure-3, yet perusal of Annexure-2 reveals that grounds of arrest have been mentioned therein and if both the documents are read together, then the same would go to show that in substance, the grounds of arrest have been communicated to the accused and as such, the provision of Article 22(1) of the CrPC is complied with. 11. Besides, this is the fourth bail application, as submitted by Mr. Keyal, and the earlier three bail applications were rejected by this Court and on earlier occasions, no such stand was taken by the accused and as such, no demonstrable prejudice is caused to him. 12. Further, it is well settled in the case of Sri Darshan (Supra), especially in Paragraph No. 20.1.3, that the constitutional and statutory Page No.# 9/11 framework mandates that the arrested person must be informed of the grounds of arrest, but neither provision prescribes a specific form or insists upon written communication in every case and judicial precedents have clarified that substantial compliance with these requirements is sufficient, unless demonstrable prejudice is shown. 13. Thereafter, in Paragraph Nos. 20.1.4 and 20.1.5 in the case of Sri Darshan (Supra), the Hon’ble Supreme Court has held as under – “20.1.4. In Vihaan Kumar v. State of Haryan, 2025 SCC Online SC 456, it was reiterated that Article 22(1) is satisfied if the accused is made aware of the arrest grounds in substance, even if not conveyed in writing. Similarly, in Kasireddy Upender Reddy v. State of Andhra Pradesh, 2025 INSC 768, it was observed that when arrest is made pursuant a warrant, reading out the warrant amounts to sufficient compliance. Both these post- Pankaj Bansal decisions clarify that written, individualised grounds are not an inflexible requirement in all circumstances. 20.1.5. While Section 50 Cr.P.C is mandatory, the consistent judicial approach has been to adopt a prejudice-oriented test when examining alleged procedural lapses. The mere absence of written grounds does not ipso facto render the arrest illegal, unless it results in demonstrable prejudice or denial of a fair opportunity to defend.” Page No.# 10/11 14. It is also well settled in the aforementioned case that mere filing of the charge sheet, the existence of a long list of witnesses, or the possibility of delay in trial, cannot, by themselves, constitute valid reasons to dilute the gravity of the offence or to disregard the case, put forth by the prosecution. It is repeatedly held by the Hon’ble Supreme Court that such factors are not standalone grounds for the grant of bail in case of heinous offences. 15. It is to be noted here that in the instant case, the allegation against the petitioner was that he act mediator and one trafficker of 18989 bottles of Codeine based Phensydyl cough syrup, with other co- accused and it also appears from the objection petition filed by the respondent NCB, that the accused has the antecedent of criminal activities and he was caught along with illegal liquor inside his truck, by police in Darbhanga district, Bihar and for which, he was in jail hajot for two months and further, he was also involved in another case of NCB, Guwahati Zonal Unit, registered vide NCB Cr. No. 24/2021, wherein he confessed his conscious involvement in the trafficking of codine based Eskuf Cough Syrup. 16. It is also well settled in the case of Ajay Kumar Singh @ Papu, in Criminal Appeal No. 952/2023 (arising out of SLP (CRL) No. 2351/2023) and also in the case of Narcotics Control Bureau Vs. Kashif, in Criminal Appeal No. 5544/2024 (arising out of Special Leave Petition (Crl.) No. 12120/2024), that when the contraband substances recovered from the possession of the accused is of commercial quantity, then the accused has to satisfy the twin requirements under Page No.# 11/11 Section 37 of the NDPS Act, that he is not guilty of the offence and that he will not commit any offence while on bail and unless these two conditions are satisfied, the accused cannot be released on bail. And in the instant case, from the documents placed on record and also from the submission of the learned counsel for the accused, this Court is unable to derive satisfaction in respect of the fulfillment of the twin conditions under Section 37 of the NDPS Act. 17. It is true that the accused is behind the bar for the last four years. But, as held by the Hon’ble Supreme Court in the case of Sri Darshan (Supra), delay in trial cannot by itself constitute a valid reason to dilute the gravity of the offence or to disregard the case, put forth by the prosecution. 18. Thus, under the given factual as well as legal matrix and further, balancing the individual right of the accused with that of the societal interest and also balancing his right with the nature and gravity of the offence, this Court is of the view that this is not a fit case where the privilege of bail can be extended to the accused. Further, there is nothing on the record of the learned trial court to show that the delay in trial is attributable to the prosecution side. And accordingly, the same stands dismissed. However, the learned Trial Court is directed to expedite the trial and to complete the same as soon as practicable. JUDGE Comparing Assistant