Page No.# 1/11 GAHC010024342025 2025:GAU-AS:4739 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./355/2025 GOPAL CHANDRA RAI S/O SHRI KARIKA CHANDRA ROY RESIDENT OF MARWARI PATTY DIBRUGARH, DISTRICT DIBRUGARH ASSAM, PIN 786001(TEMPORARY ADDRESS) PERMANENT ADDRESS RESIDENT OF DIKHLEM TILA PO DAYANGMUKH, PS KHERONI DIST. KARBI ANGLONG, ASSAM PIN-732448 VERSUS THE UNION OF INDIA REPRESENTED BY THE STANDING COUNSEL, DIRECTORATE OF REVENUE INTELLIGENCE (DRI) Advocate for the Petitioner : MR. M BISWAS, A GHOSAL,J SINGPHO,S K DAS Advocate for the Respondent : SC, DRI, Page No.# 2/11 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 21.04.2025 1) Heard Mr. M. Biswas, the learned counsel for the petitioner. Also heard Mr. S. C. Keyal, the learned Standing Counsel, DRI. 2) This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Gopal Chandra Rai, who has been detained behind the bars since 11.09.2022 (for more than 2 years and 7 months) in connection with NDPS Case No. 35/2023, corresponding to DRI Case No. 13/2022 dated- 11.09.2022 under Sections 20(b)(ii)(C)/29 of the NDPS Act, 1985, pending before the Court of learned Additional Sessions Judge No. 2, Kamrup (Metro). 3) The gist of accusation in this case is that on 10.09.2022, the Intelligence Officer of Directorate of Revenue Intelligence, Guwahati received an information through reliable sources that a 6 (six) wheeler TATA container Truck bearing Registration No. NL-O1-AX-7084 was carrying huge quantity of Ganja, concealed in secret cavities and the said vehicle is parked in a garage at Bishnupur, near Nilachal Parking, Lalmati. In terms of the aforesaid information, a team of DRI officials was constituted and the same reached the place where the said vehicle was parked and the said vehicle was searched. On search of the said vehicle, 177 packets containing about 2004 kgs of suspected Cannabis (Ganja) was recovered from the two cavities on the rooftop of the vehicle. Accordingly, DRI Case No. 13/CX/NDPS/GANJA/DRI/CZU/2022-2023 dated-11.09.2022 was registered and ultimately, after completion of the investigation, final complaint was filed before the Court of the learned Sessions Judge, Kamrup (Metro), on Page No.# 3/11 the basis of which, NDPS Case No. 35/2023 was registered. 4) Sri M.Biswas, the learned counsel for the petitioner has submitted that the petitioner was arrested on 11.09.2022 and the final complaint was filed on 10.03.2023. However, till date, only 3 (three) out of total 14 (fourteen) prosecution witnesses have been examined. 5) The learned counsel for the petitioner has submitted that the petitioner is entitled to get bail on the ground of prolonged incarceration as he has been languishing behind the bars for more than 2 years and 7 months, without there being much progress in the trial. 6) The learned counsel for the petitioner has also submitted that the petitioner is also entitled to be released on bail on the ground that in this case, there has been violation of the Constitutional Mandate of furnishing the grounds of arrest to the petitioner at the time of his arrest. He submits that neither the mandate of Section 50 of the Cr.P.C. nor Section 52 of the NDPS Act, 1985 has been followed in this case. 7) The learned counsel for the petitioner further submits that the requirement of law is that the grounds of arrest are to be furnished to the arrestee soon after his arrest in writing and the same has to be distinguished for reasons for arrest. However, the learned counsel for the petitioner submits that in this case, the Arrest Memo which was served on the petitioner on 11.09.2022 at the time of his arrest only mentions that the petitioner has been arrested for violating the Provisions of Section 8(C) of the NDPS Act, 1985 and thereby, he has committed offence punishable under Section 20(b)(ii)(C)/22/29 of the NDPS Act, 1985. The learned counsel for the petitioner further submits in the facts of the case narrated in the notice there is no accusation made against the present Page No.# 4/11 petitioner. 8) The learned counsel for the petitioner further submits that no basic facts, which necessitated the arrest of the petitioner, in the instant case, were stated in the said Arrest Memo. He further submits that the requirement of the Constitutional Provisions of Article 22(1) is that at the time of his arrest, the grounds of arrest is to be furnished to the petitioner in writing and any non- compliance of the said Constitutional Mandate, will render the arrest illegal. 9) The learned counsel for the petitioner has further submitted that mere stating the facts of the case, without there being any implicating statements against the present petitioner in the facts so narrated and without stating all such details which were in the hands of the Investigating Officer, which necessitated the arrest of the petitioner would not satisfy the constitutional and statutory requirement of furnishing the grounds of arrest in writing. 10) To substantiate his submission, the learned counsel for the petitioner has cited a ruling of the Hon’ble Apex Court in the case of “Prabir Purkayastha vs State (NCT of Delhi),” reported in “(2024) 8 SCC 254.” 11) On the other hand, Mr. S. C. Keyal, the learned Standing Counsel, DRI has vehemently opposed the grounds of bail of the petitioner in this case. He submits that the quantity of contraband seized in this case is 2004 kgs, which is a commercial quantity of Ganja and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. 12) He further submits that the ground of prolonged incarceration, as taken by the petitioner in this case may not help the petitioner, as it was due to his fault that the trial prolonged in this case. He cited the orders of the Trial Court from the scanned copy of the Trial Court records to show that though the witnesses Page No.# 5/11 were present on one occasion, they could not be examined as the petitioner was not having a counsel to defend himself in the trial and therefore, the witnesses had to be sent back. It is only after appointing a Legal Aid Counsel that 3 (three) of the witnesses were examined by the Trial Court. 13) He further submits that the remaining witnesses would also be examined very soon and therefore, objects the release of the petitioner on the ground of prolonged incarceration. 14) As regards the plea of not furnishing the grounds of arrest is concerned, Mr. S. C. Keyal, the learned Standing Counsel, DRI submits that in the instance case, the Arrest Memo which was served on the petitioner and which the petitioner received after putting his signatures thereon, contains the grounds of arrest as well as the facts, which necessitated his arrest in this case. 15) He also submits that the penal provision, which the petitioner is accused to have contravened, have been specifically stated in the Arrest Memo as well as the facts of the case, which shows the recovery of 2004 kgs of suspected Ganja from the Truck, which was driven by the present petitioner as also stated in the Arrest Memo and therefore, all basic facts which necessitated the arrest of the present petitioner in this case have been mentioned in the Arrest Memo and therefore, there is no violation of the Constitutional Mandate of Article 22(1) of the Constitution of India as well as of Section 52 of the NDPS Act, 1985 and Section 50 of the Cr.P.C. in this case. 16) I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of the records of NDPS Case No. 35/2023. 17) In this case, the petitioner has taken mainly two grounds for seeking bail- Page No.# 6/11 (i) Non-compliance of the Constitutional Mandate of furnishing the grounds of arrest as provided under Article 22(1) of the Constitution of India, as well as Section 52 of the NDPS Act, 1985 and Section 50 of the Code of Criminal Procedure, 1973. (ii) The second ground for bail taken by the petitioner is that of prolonged incarceration. 18) As regards furnishing the grounds of arrest to an arrestee at the time of his arrest, there is no dispute regarding the established Constitutional Mandate as well as statutory requirement that such an arrestee has to be furnished with the grounds of arrest at the time of his arrest. 19) The Apex Court has held in the case of “Prabir Purkayastha vs State (NCT Of Delhi)” (supra) that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence as provided under Article 22(1) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead the custody of such an arrestee being rendered illegal, and on that ground he may not be detained any further. The grounds of arrest as envisaged under the provisions of the constitution as well as the NDPS Act, 1985 and the Code of Criminal Procedure, 1973 requires furnishing the arrestee all such basic facts which necessitated the arrest of such an arrestee. 20) In the instant case, though the arrest memo mentions about the recovery of seized contraband from the Truck bearing Registration No. NL-O1-AX-7084, however, in the said arrest memo, it has not been stated that the said Truck was driven by the petitioner or that he was present in the said Truck. Page No.# 7/11 21) In the present case, the arrest memo levels an accusation against the present petitioner contravening the provisions of Section 8(c) of the NDPS Act, 1985, however, it is not specifically stated therein, as to in what manner the said provisions were contravened. Thus, though some facts were stated in the arrest memo furnished to the present petitioner in the instant case, however, it is cryptic in nature and no clear accusation narrating the basic facts necessitating the arrest of the petitioner in the instant case has been mentioned in the arrest memo. 22) As regards the plea of prolonged incarceration is concerned, the Supreme Court of India in “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 SCC Online SC 352” has observed that “grant of bail on the ground of undue delay in trial cannot be said to be fettered by Section 37 of the NDPS Act, 1985”. 23) The Apex Court in “Rabi Prakash Vs. State of Orissa” reported in “2023 SCC Online SC 1109,” has observed that “the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1) (b)(ii) of the NDPS Act.” 24) In the case of “Ankur Chaudhary Vs. State of Madhya Pradesh” reported in “2024 Live Law (SC) 416”, the Supreme Court of India has observed as follows: - “...........it is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates Page No.# 8/11 against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.” 25) In this regard the observations made by the Apex Court in the case of “Satender Kumar Antil Vs. Central Bureau of Investigation & Another” reported in “AIR 2022 SC 3386” are relevant, same are quoted here in below: “49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the noncompliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the Page No.# 9/11 Court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own.” 26) In the instant case, the petitioner has been detained behind the bars for more than 2 years 07 months, however, till date only 3(three) out of total 14(fourteen) listed prosecution witnesses have been examined. The plea of the learned Standing Counsel for DRI that the petitioner was at fault for the delay as he failed to engage a counsel when the witnesses were present before the Court is not acceptable under the facts and circumstances of the case. As in the event of failure to engage a counsel by an accused due to reasons of poverty or any other reasons, it is for the Trial Court to provide the assistance of legal aid counsel to such an accused and his inability to engage a counsel may not be regarded as a fault on the part of the petitioner. Page No.# 10/11 27) This Court is of considered opinion that in view of the observation made by the Apex Court in the cases cited here in above, for whatsoever reason if inordinate delay is caused and if without any fault on the part of the petitioner, he is kept under detention for a long period, it would certainly infringe his fundamental rights guaranteed under Article 21 of the Constitution of India. Under such circumstances, his constitutional rights guaranteed under Article 21 of the Constitution of India would outweigh the fetters imposed under Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and he would be entitled to get bail on the ground of prolonged incarceration only. 28) Under the facts and circumstances of this case, in the considered opinion of this Court, the long incarceration of the petitioner has, in the instant case as well, outweighed the embargo of Section 37 of the NDPS Act, 1985. Therefore, he is entitled to get bail on the ground of the infringement of his fundamental right guaranteed under Article 21 of the Constitution of India. 29) In view of the above, the petitioner, namely, Gopal Chandra Rai is allowed to go on bail of Rs. 2,00,000/- (Rupees Two Lakh only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned Additional Sessions Judge No. 2, Kamrup(M) with the following conditions: i. That the petitioner shall cooperate in the trial of Special (NDPS) Case No. 35/2023, which is pending in the Court of the learned Additional Sessions Judge No. 2, Kamrup(M); ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, Page No.# 11/11 threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; vi. That the petitioner shall not commit any offence while on bail; vii. That the petitioner shall appear before the Officer-in-Charge of Kheroni Police Station once in every fortnight till the pendency of the Special (NDPS) Case No. 35/2023; viii. That any violation of the above conditions shall be a good ground for the Trial Court to get the petitioner arrested and commit him to custody. 30) With the above observation, this bail application is accordingly, disposed of. JUDGE Comparing Assistant