Page No.# 1/6 GAHC010024432025 2025:GAU-AS:4400 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./399/2025 PRASENJIT GIRI S/O ANANDA CHANDRA GIRI VILLAGE- ARBINDA NAGAR P.O. PURATHAL RAJNAGAR, P.S.MADHUPUR DIST. DIBRUGARH, SIPAHIJALA, TRIPURA-799100 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL NARCOTICS CONTROL BUREAU (NCB) Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,S K DAS,J SINGPHO Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 08.04.2025 Heard Mr. M. Biswas, learned counsel for the petitioner and Mr. K. Jain, learned counsel appearing on behalf of NCB. 2. By filing this application U/S 483 of the BNSS, 2023, the petitioner, namely, Page No.# 2/6 Prasenjit Giri, has sought for bail in connection with NDPS Case No.133/2023 (corresponding to NCB Crime No. 05/2023) U/S 20(b)(ii)(C)/ 29 of the NDPS Act, pending in the Court of learned Additional Sessions Judge No.2, Kamrup (M), Guwahati. 3. The prosecution case is brief is that on 17.03.2023,on receipt of an information from a reliable source that one person namely Shajan Miah will be carrying a huge quantity of Ganja which were concealed inside specially made cavity above passenger sitting area of one Mahindra Savari vehicle bearing Regd. no. TR-01B4290. Accordingly, search operation was conducted and intercepted the aforesaid vehicle along with driver of the vehicle Shajan Miah. During search, 19 packets of Ganja containing total weight of 119.62 kgs of cannabis (Ganja) found from the said vehicle and seized the same. 4. It was urged by learned counsel for the petitioner that seizure list shows that contraband item was seized from one Shajan Miah. It is an admitted fact that no any narcotic drug was recovered from the possession of the petitioner. The petitioner is not even aware as to what was loaded in the said Mahindra Savari passenger vehicle. 5. It is further submitted that the petitioner was arrested only on the statement made U/S 67 of the NDPS Act. In terms of the ratio laid down by the Hon’ble Apex Court in Toofan Singh Vs. State of Tamil Nadu (2024) 1 SCC 4, a statement made U/S 67 of the NDPS Act is an inadmissible piece of evidence. The learned counsel for the petitioner also contended that the petitioner is in custody for more than two years since his arrest on 18.03.2023. Out of 13 witnesses only 3 witnesses have been examined by the Trial Court. It is difficult to believe that the trial of the case will be completed within a short span of Page No.# 3/6 time. In support of his submission, the learned counsel for the petitioner has placed reliance on the following case laws- i. Rabi Prakash Vs. State of Orissa, reported in (2023) Supreme SC 707. ii. Dhiraj Kumar Shukla Vs. State of UP, reported in SLP (CRL) 6690/2022. 6. The main thrust of argument for the learned counsel for the petitioner is that no grounds of arrest was communicated to the petitioner in the notice served upon him U/S 50 Cr.P.C. (U/S 47 BNSS) as well as no notice was served to his representative U/S 50(A) Cr.P.C (U/S 48 BNSS) which are mandatory in nature. 7. On that issue, learned counsel has relied on the following case laws- a. Prabir Purkaystha Vs. NCT of Delhi (2024) 8 SCC 254. b. Vihaaan Kurmar Vs. State of Haryana and another, reported in (2025) SCC Online (SC) 269. 8. Per Contra, Mr. Jain, has submitted that once the charge sheet has been laid the question of grant of bail has to be considered and decided only with reference to the merits of the case vide the judgment of the Hon’ble Supreme Court reported in (2024) 3 SCC 734 (CBI Vs. Kapil Wadhawan and another). 9. By referring the judgment of NCB Vs. Kashif vide (2024) SCC online SC 3848, Mr. Jain has pointed out that the Hon’ble Supreme Court has determined Page No.# 4/6 the fact for granting bail in case of NDPS Act in paragraph 39 of the said case. Accordingly, the learned counsel representing the NCB has prayed for dismissing the bail application. 10. I have considered the submission of the learned counsel and also perused the Trial Court record. 11. Regarding prolonged incarceration admittedly, the accused petitioner was arrested on 18.03.2023 i.e., he has been detained in custody for more than two years. Charge was framed on 19.12.2023. After that one and half years have been elapsed but the prosecution has examined only 3 witnesses out of cited 13 witnesses in the charge sheet. It is true that prolonged incarceration may not be a ground to release the accused on bail but which has some limitation. There is no explanation on the side of the NCB regarding such delay of process of trial. It is also not in dispute that the alleged contraband was recovered from the possession of one Shajan Miah. 12. It is pertinent to say here that in the case of Kapil Wadhawan (Supra), it was discussed regarding statutory right of default bail U/S 167 Cr.P.C. which is not applicable in the instant case. Coming to the case of Kashif (Supra) the Hon’ble Supreme Court has stated that while considering the application for bail the Court must bear in mind the provision of Section 37 of the NDPS Act which are mandatory in nature. However, in the case of Vihaan Kumar (Supra) it is specifically stated when violation of Article 22(1) is established, it is the duty of the Court forthwith order the release of the accused and that will be a ground to grant bail, even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the Court to grant bail when the violation of Articles 21 and 22 is established. Page No.# 5/6 13. In the case in hand, as it appears from the Section 50 Cr.P.C. notice issued to the petitioner by NCB dated 18.03.2023 which is reproduced as follows- “You are hereby informed that you are arrested in connection with 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.” 14. From the aforesaid notice issued to the petitioner vide Case No.05/2023, it reveals that no grounds of arrest have been informed to the petitioner as alleged which is mandatory in nature. 15. In view of the aforesaid legal proposition, it can be said that an arrested person must be informed of the ground of his arrest and detention which is mandatory in nature. Admittedly, in the case in hand, there is no reflection in the arrest memo or the Section 50 Cr.P.C. notice issued to the petitioner that the grounds of arrest was being informed to the petitioner at the time of his arrest. Accordingly, the petitioner is entitled for bail. 16. The accused namely, Prasenjit Giri shall be released on bail on furnishing a bail bond of Rs.2,00,000/-( Rupees Two Lakhs) with two sureties of the like amount out of which one of the surety must be Government employee in the State of Assam, to the satisfaction of the learned Additional Sessions Judge No.2, Kamrup (M), Guwahati, Assam. 17. The direction for bail is further subject to the following conditions that the accused petitioner- a. shall not leave the territorial jurisdiction of the learned Additional Sessions Judge No.2, Kamrup (M), Guwahati, Assam without prior written permission Page No.# 6/6 from him/her till disposal of the case. b. shall regularly attend the trial Court and cooperate with the Court for early disposal of the trial. 18. The learned Additional Sessions Judge, No.2, Kamrup (M), Guwahati, Assam is at liberty to impose any other condition(s) as it deems fit and proper at the time of releasing the accused/petitioner on bail to procure his attendance during trial. 19. The observation made by this Court is for the purpose of this bail application only, not on merits of the case. 20. In terms of the above, this bail application stands disposed of. JUDGE Comparing Assistant