Page No.# 1/9 GAHC010028562025 2025:GAU-AS:12845 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./415/2025 CHAKEDUL HAQUE @ CHHAKEDUL HAQUE S/O- LATE ABDUL CHATTAR ALI @ LT ABDUL SATTAR ALI R/O- VILL- BALABHUT, P.O- BALABHUT, P.S- TUFANGANJ, DIST- COOCHBEHAR, WEST BENGAL VERSUS NARCOTICS CONTROL BUREAU REP. BY ITS STANDING COUNSEL, NCB, ASSAM Advocate for the Petitioner : MR. A T SARKAR, MR P K BASU,MR. N N B CHOUDHURY,MS. K DEY,AMINUR RAHMAN Advocate for the Respondent : SC, NCB, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Date : 17.09.2025 1. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Chakedul Haque @ Chhakedul Haque @ Mama, who stated to be in undertrial detention since 17.03.2025 in Page No.# 2/9 connection with NDPS Case No. 77/2025 (arising out of NCB Crime No. 09/2024) under Sections 8(c) r/w section 22(c)/29 of NDPS Act, 1985. 2. The gist of the allegations is that on 26-09-2024, the NCB Guwahati, Zonal Unit seized 3.9 kgs of psychotropic substances in the nature of Methamphetamine tablets from a vehicle bearing registration No. WB-20-Z-6596 at VIP Road, Khanapara and that these drugs were seized from the conscious possession of one Noor Safi and Sharif Chesam. Accordingly, the case was registered and investigation started. During investigation, on the basis of voluntary statements of the aforementioned Noor Safi, Sharif Chesam and one Basant Thakur under Section 67 of the NDPS Act, the name of the present accused was revealed and upon an information that the present accused was present in a hotel in Guwahati, he was directed to appear before the I/O and tender his statement. 3. Accordingly, the present accused appeared and after recording his statement, he was arrested on 12-12-2024. He was also stated to be custodially examined by NCB and thereafter, presently in judicial custody in Central Jail, Guwahati. The case diary as called for has been placed before the court by the NCB, represented by learned Standing Counsel S.C. Keyal, assisted by learned counsel Ms. M. Deka. 4. The petitioner, accused is represented by learned counsel Mr. N.N.B. Choudhury, assisted by learned counsel Ms. S.M. Deka. Since the penal provisions given at this stage pertain to commercial quantity of Page No.# 3/9 psychotropic substances, therefore the test of Section 37 of the NDPS Act would be applicable. However, the learned defence counsel has chosen not to initially go into the said aspect of the applicability or otherwise of the rigors of Section 37 of the NDPS Act. Rather, the thrust of his contentions on behalf of the accused has been that at the time of his arrest, there was no compliance or incomplete compliance with the provisions of Section 47-48 of the BNSS, which according to the prevailing law laid down by the Hon’ble Supreme Court in the cases of Vihaan Kumar vs. State of Haryana, reported in 2025 5 SCC 799 and Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 SCC Online SC 934 – are mandatory, failing which, the arrest would be illegal and the concerned accused would be liable to be released on bail. The learned defence counsel has taken the court through the relevant portions of the said judgments, as also the seminal judgment of D.K. Basu vs. State of W.B., reported in (1997) 1 SCC 416 and some of its relevant areas. The learned counsel for the accused has also referred to several decisions of this Court whereby the concerned accused persons therein have been granted bail on the ground of non- compliance or inadequate compliance with these procedural provisions pertaining to arrest under Section 47 and 48 of BNSS. 5. After referring to the principles laid down in Prabir Purkayastha (supra) and Vihaan Kumar (supra), the copy of the notice furnished to the accused at the time of arrest has been produced before the court, as also the notice given to Alekha Bibi, stated to be his wife, under Section 48 BNSS. 6. I have perused the relevant portions of the case diary. It is Page No.# 4/9 revealed that the arrest of the present accused has been primarily on the statement of co-accused under Section 67 NDPS. 7. After the law laid down by the Hon’ble Supreme Court in the case of Toofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1, it is no longer res integra that a conviction in an NDPS case cannot be based solely upon the statement of a co-accused. However, as of now, it is not a settled position that in a situation of the incriminating materials being mainly a statement under Section 67 – the accused person would be automatically entitled to bail, even if the rigors of Section 37 apply. However, needless to say that, if the sole or main materials against the accused at the stage of consideration of the bail is only an incriminating statement of co-accused under Section 67 of the NDPS Act, then that aspect can certainly be taken into account for the purpose of adjudication of the bail. 8. The other materials of the case diary submitted by the NCB also indicate, prima facie, implicating materials against the main accused and also the present accused. It is revealed from some of the materials that the accused persons who were initially apprehended were carrying the contraband for this accused. There are materials to indicate prima facie his involvement in drug trafficking. 9. However, as the defence has based its primary contentions on non-compliance with the procedural requirements of Sections 47 and 48 of BNSS – first, that aspect has to be seen. In this context, Mr. Keyal, assisted by Ms. M. Deka, learned counsels for the prosecution/NCB, have contended that there has been due compliance with Sections 47 and 48 Page No.# 5/9 of the BNSS. The prosecution has also referred to a recent decision of the Hon’ble Supreme Court rendered in the case of State of Karnataka v. Sri Darshan, reported in 2025 0 Supreme (SC) 1201. On the basis of this decision, it is contended and submitted that the said decision makes a departure from the principles laid down in Vihaan Kumar (supra) and Prabir Purkayastha (supra) and holds that mere non-compliance may not entitle the accused to bail and that the court may also have to apply the test of prejudice. 10. In this context, however, the learned defence counsel Mr. N.N.B. Choudhury has contended and submitted that this aspect was taken up and gone into by a division bench of this court in the case of National Investigation Agency vs. Thangminlen Mate @ Lenin Mate (Criminal Appeal 234/2025) in which, referring to the Constitution Bench judgment of National Insurance Company Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680, it was noticed and accepted that when there are two conflicting decisions of coordinate benches of the Hon’ble Supreme Court, the judgment earlier in point of time has to be followed. The relevant para 15 of the division bench judgment may be reproduced herein below – “In Sri Darshan (supra), the Supreme Court had negated the submission of the learned counsel for the accused respondent that an arrest would be illegal if the grounds of arrest were not furnished immediately, thereby violating Article 22(1) of the Constitution and Section 50 Cr.P.C, now Section 47 of the BNSS. However, in the case of Vihaan Kumar (supra), the decision of the Supreme Court therein is to the effect that the grounds of arrest has to be in writing and has to be furnished to the Page No.# 6/9 relatives of the arrested person. Thus, there appears to be dichotomy of views in the different decisions of the Supreme Court. However, keeping in view the judgment of the Constitution Bench of the Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, wherein it was held that if there are conflicting decisions of equal Benches of the Supreme Court, the earlier decision should be followed by the High Courts, we are bound to follow the earlier decision of the Supreme Court, which in this case would be Vihaan Kumar (supra). Thus, keeping in view the decision of the Supreme Court in Vihaan Kumar (Supra), we are of the view that the grounds of arrest in writing would have to be made known, not only to the arrested person, but also to the family/relative of the arrested person.” 11. Therefore, this position is clear that if there is indeed a conflict between Vihaan kumar (supra) and Sri Darshan (supra), the courts in terms of the principle laid down in Pranay Sethi (supra) would have to follow the earlier decision, which is Vihaan Kumar (supra). 12. Before proceeding further, I have given a careful look at the notice under section 47 of the BNSS. The contents of the same notice may be reproduced herein below – Notice u/s 47 BNSS Chakedul haque @ Sahidul @ Mamu (35 years) S/o Abdul Chattar Ali, R/o- akshin Balabhut, PO + Vill – Balabhut, PS- Tufanganj, Cooch Behar, West Bengal – 736159 Case No. : NCB Guwahati Case No. 09/2024 U/S 08(c) r/w 22 (C) and 29 NDPS Act, 1985 You are hereby iformed that you are arrested in connection with seizure of 3.900 kg Methamphetamine tablets vide NCB Guwahati Crime no. Page No.# 7/9 09/2024 for the contravention of above-mentioned section. The case is no-bailable. So, you will be produced before the Hon’ble Court. You may submit petition before the Hon’ble Court for your bail. Signature of Arrestee Signature of I/O 13. Thus, I find that though in the instant case, it is not a case of non- existence of section 47 BNSS notice, but the notice mainly states that 3.9 kg of the contraband in the form of psychotropic substances, namely methamphetamine tablets were seized. 14. It does not even mention that the seizure was actually from two other persons, namely Noor Safi and Sharif Chesam and that the present accused was arrested on the statement of those persons. Further, the notice has no other details. In Prabir Purkayastha (supra), it has been clarified and explained that the grounds of arrest have to be specific to the person and should be in sufficient detail so as to enable the accused to understand the specific reasons for his arrest and in turn be assisted in preparing for his defence. 15. Upon perusing the section 47 BNSS notice in the instant case, I am constrained to hold that though the notice is there, but it does not meet the standards laid down in Prabir Purkayastha (supra) and Vihaan Kumar (supra). Further, it has been held in Vihaan Kumar in Para 41 & 42 that grounds of arrest in similar detail also have to be provided to the family members of the accused under section 48 BNSS, so that the family members are also appraised of the specific reasons as to why the accused has been arrested and in turn be facilitated to prepare for his defence and bail. Page No.# 8/9 16. In this regard, I have carefully perused the notice under Section 48 BNSS given to Alekha Bibi, stated to be the wife of the present accused. 17. Though it is not a case of non-existence of the notice, but the contents of the notice are on similar lines as the notice under Section 47 BNSS. Thus, I find that the notice merely says about his arrest in connection with seizure of 3.9 kg of the concerned contraband psychotropic substances. It does not state any detail that the same was seized from two other persons namely Noor Safi and Sharif Chesam and the present accused who is the husband of Alekha Bibi, was arrested on the basis of statements of those two persons. 18. Therefore, here also, I am constrained to come to the conclusion that though the notice under 48 BNSS exists, but the contents thereof are bereft of sufficient details and the standards stipulated in Vihaan Kumar (supra). 19. On the basis of these materials and in the backdrop of the aforesaid discussion, this Court is constrained to come to the conclusion that at the time of arrest, the contents of notice under section 47/48 BNSS did not meet the stipulated standards so as to satisfy the constitutional requirements under Article 22(1) and Article 21 of the Constitution of India. That being the situation, in terms of the settled law in Vihaan Kumar(supra), the aforesaid deficiency and procedural infirmity at the time of arrest of the present accused rendered the arrest fatally infirm and therefore, any subsequent detention of the accused has also become untenable – thereby making him entitled to Page No.# 9/9 bail. 20. Thus, as the procedure of arrest could not pass the mandatory test laid down by the Hon’ble Supreme Court, therefore the accused has to be granted bail on those grounds itself and the aspect of general merits, including the applicability of rigours of section 37 of the NDPS Act need not be gone into and is rendered academic. 21. Consequently, in the facts and circumstances, the accused is hereby allowed to go on bail of Rs.1,00,000/- (Rupees One lakh Only) with two securities of the like amount, one of which has to be from the State of Assam. Further, the following conditions are imposed – (i) He shall not abscond; (ii) He shall not misuse his liberty to indulge in any illegal activities including any activities of peddling narcotic drugs; (iii) He shall not hamper or tamper with evidence in any manner; (iv) He shall not intimidate or try to influence any witnesses. 22. In case of violation of any or more of the bail conditions, the prosecution would be at liberty to move an appropriate application before the learned Special Court or this Court for cancellation of the bail. 23. The instant bail petition stands allowed and disposed of on the aforesaid terms. JUDGE Comparing Assistant