Page No.# 1/4 GAHC040005482025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Petn./70/2025 Smti Abida Begum Wife of Shri Hatim Ali, presently residing at A Sector, Naharlagun, PO and PS Naharlagun, Papum Pare District, Arunachal Pradesh and permanent resident of Ahmedpur Block No.2, PO Laluk, PS Islampur, Lakhimpur District, Assam VERSUS The State of AP represented by the PP of AP Advocate for the Petitioner : M Ranka, B Tagia,T Gameh Advocate for the Respondent : P P of AP, BEFORE HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER ORDER Date : 09-04-2025 Heard Mr. T. Gameh, learned counsel for the petitioner. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State. 2. This is an application under Section 528 & 483 of the BNSS, 2023 praying for quashing of the Non Bailable Warrant of Arrest (NBWA) Order, issued on Page No.# 2/4 09.01.2025, passed by the learned Special Judge (NDPS), Yupia in NDPS Case No. 24/2023 arising out of Nirjuli P.S. Case No. 91/2022 under Sections 21(b)/27(a)/27/29 of the NDPS Act. 3. Mr. Gameh, learned counsel for the petitioner/accused has argued that in the aforementioned case, the accused/petitioner had been granted bail by the learned Special Judge (NDPS), Yupia on 30.10.2024. It is submitted that the accused/petitioner was appearing regularly before the learned Trial Court, however, on a fixed date, the accused/petitioner was suffering from stomach pain and fever and he had gone for medical treatment and therefore, he could not appear before the Court. On 09.01.2025, the accused/petitioner through his counsel filed a Criminal Misc. Application being No. 46/2025 praying for recalling/cancellation of the NBWA. However, vide order dated 09.01.2025, the application was rejected by the learned Trial Court on the ground that medical documents submitted by the accused was not legible and thereafter, on the same day the NBWA was issued against the accused/petitioner. 4. The learned counsel for the accused/petitioner stated that the accused was not responsible for the absence as he was genuinely under medical treatment and it is also submitted that the accused person was not heard and the previous bail granted to him was not cancelled before the learned Trial Court issued the NBWA. It is also the contention of the learned counsel for the accused/petitioner that without cancelling his earlier bail, the learned Trial Court could not have issued the NBWA against him and therefore, it is prayed that the said NBWA may be quashed and set aside. 5. The learned counsel for the accused/petitioner has also undertaken that the accused is ready and willing to appear before the learned Trial Court on a date Page No.# 3/4 fixed by this Court. 6. I have also heard the learned Additional Public Prosecutor appearing for the State, who has fairly submitted that the said NBWA could not have been issued by the learned Trial Court without cancelling the bail bonds. He has relied in the case of Makhan Lal vs. Union Territory of Jammu & Kashmir, reported in 2023 SCC OnLine J&K 306, wherein, the Hon’ble High Court of Jammu and Kashmir has observed that a mere failure to appear before the Court in the absence of any willingness on part of the accused would not amount to a “breach” and there has to be animus on part of accused not to abide by or comply with the terms and conditions of the bond. Such animus alone makes the failure of accused to appear, a breach in terms of Section 446 of the Cr.P.C. Such animus on the part of accused could be ascertained only after affording sufficient opportunity to the accused. 7. The learned Additional Public Prosecutor for the State has also relied on a judgment of a coordinate Bench of this Court, in the case of Basit Uddin vs. the State of Arunachal Pradesh, reported in 2024 0 GAU (AP)1003, wherein, it was also held that Non-Bailable Warrant cannot be issued without prior cancellation of bail and due process, emphasizing the necessity of following legal procedures. 8. After examining the records and after hearing the learned counsels appearing for the parties, this Court is of the view that the bail granted on 30.10.2024 by the learned Trial Court was not cancelled nor was the surety given any notice before issuing the NBWA on 09.01.2025. 9. Accordingly, the Non Bailable Warrant of Arrest (NBWA) Order, issued on 09.01.2025, passed by the learned Special Judge (NDPS), Yupia in NDPS Case No. 24/2023 arising out of Nirjuli P.S. Case No. 91/2022 under Sections Page No.# 4/4 21(b)/27(a)/27/29 of the NDPS Act is hereby, quashed and set aside. 10. The petitioner/accused shall appear before the learned Trial Court on 28.04.2025 and if the petitioner/accused fails to appear on the said date fixed by this Court, the learned Trial Court is at liberty to proceed with the matter in accordance with law. 11. With the above observations and directions, the criminal petition stands disposed of. JUDGE Comparing Assistant