Page No.# 1/6 GAHC010121912026 2026:GAU-AS:10065 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1630/2026 T H SURAJ SINGHA S/O JATIN SINGHA, R/O VILLAGE KAMESWAR KAMESWARGAON, P.O. KAMESWAR, P.S. DHARMANAGAR, DISTRICT NORTH TRIPURA, TRIPURA. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. R BORA, Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 22-07-20 26 Heard Mr. R. Bora, learned counsel for the petitioner and Mr. K. K. Parashar, learned Additional Public Prosecutor, for the State. 2. This petition under Section 483 of the BNSS, 2023 has been filed by the accused-petitioner, namely, T. H. Suraj Singha, praying for grant of bail in Page No.# 2/6 connection with Special NDPS Case No.79/2025 under Sections 20(b)(ii) (C)/29 of NDPS Act (arising out of Lumding P.S. Case No.109/2025), pending before the learned Special Judge, Hojai. The petitioner was stated to have been formally arrested on 24.08.2025. 3. It is submitted at the Bar that charges have already been framed under Section 20(b)(ii) (c)/29 of the NDPS Act and the case proceeded to the stage of evidence. 4. The scanned record has been received. 5. The gist of the allegations is about recovery of the 23 kg of suspected ganja from the possession of the petitioner and another. 6. Mr. Bora, learned counsel submits that, though the petitioner was shown to have been formally arrested on 24/08/2025 at 1 P.M., and as reflected in the FIR he was detained by the police on 24/08/2025 at 1:30 AM but as per seizure list seizure was made at 08:28 p.m. on 23.08.2025. As per the forwarding report, the remand order was passed by the Magistrate on 25.08.2025 - thereby, his production before the learned remand Magistrate has exceeded the stipulated 24 hours and hence, there is an infirmity in his arrest and his continued detention is untenable. 7. In support of his contentions the learned counsel for the petitioner relied upon the following two cases: (i) Directorate of Enforcement vs Subhash Sharma reported in 2025 SCC Online SC 240. (ii) State of Haryana and others vs Dinesh Kumar reported in (2008) 3 SCC 222. Page No.# 3/6 8. The learned Additional Public Prosecutor stated about the serious nature of the allegations and seizure of a large quantity of suspected drugs from the accused. 9. I have perused the relevant materials, considered the rival submissions and gone through the case laws. 10. As stated in the FIR pertaining to the incident, the accused persons were apprehended on 24.08.2025 at 1.30 a.m., though as per the arrest memo, they were formally arrested on 24.08.2025 at 1.00 P.M. The forwarding report is dated 24.08.2025, but though the I.O. has signed on the same date, i.e. 24-08- 2025, but he has not mentioned the time at which the accused persons were produced before the Magistrate. 11. What is however, more significant to notice in the instant case is that the seizure was made at 08:28 p.m. on 23.08.2025 as per the seizure list, a certified copy of which has been submitted by the petitioner. It cannot be anybody’s case that the petitioner was not effectively in custody when the seizure of the contraband was made. 12. The remand order is dated 25.08.2025. In the said order the time of production is not mentioned. But since the Magistrate is required to pass the order of remand on the very same day of production, the time of production is to be taken as on the same date as that of the order of remand i.e., 25.08.2025, which is much after expiry of 24 hours, determining the time of arrest to be no later than 08:28 p.m. on 23.08.2026, i.e., the time of seizure. 13. In the case of Directorate of Enforcement Vs. Subhash Sharma (2025) SCC OnLine SC 240, relied upon by the petitioner side, the arrest of the petitioner accused was held to be vitiated as he was detained at the IGI Page No.# 4/6 Airport Delhi on 05.03.2022 at 11.00 A.M., though formally arrested on 06.03.2022 at 1.15 A.M. and he was produced before the Court on 06.03.2022 at 3.00 P.M. Calculating the period of 24 (twenty four) hours from 11.00 A.M. on 05.03.2022, the production was held to be beyond 24 (twenty four) hours and therefore, the arrest and further detention vitiated. The relevant para nos. 6, 8 and 9 are reproduced here and below:- “6. This argument cannot be accepted. Admittedly, the LOC was issued at the instance of the appellant-Directorate of Enforcement. By executing the LOC, the Bureau of Immigration detained the respondent at IGI Airport from 4th March 2022 on behalf of the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 1.15 hours on 6th March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6th March, 2024. The perusal of the arrest order(Annexure p-1) shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5th March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. Thus, the continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22(2) of the Constitution, even his fundamental right to liberty guaranteed under Article 21 has been violated. 8. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. 9. Therefore, when arrest is illegal or is vitiated, bail cannot be denied on the grounds of nonfulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA.” 14. Similarly, in the earlier case of State of Haryana and Ors. Vs. Dinesh Kumar (2008) 3 SCC 222, the Court dealt with a similar issue and in paragraph-23, approved the principle laid down in a yet earlier decision of Page No.# 5/6 Niranjan Singh Vs Prabhakar Rajaram Kharote, (1980) 2 SCC 559. The relevant para-7 of Niranjan Singh (Supra) may be reproduced here and below:- “7. When is a person in custody, within the meaning of S. 439 Cr. P. C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the Courts jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of S. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.” 15. In the case of Subhash Sharma (supra), though the Hon’ble Apex Court, in my view, did not lay down in so many words the principle that the time of 24 hours under Article 22 of the Constitution has to be calculated from the time of detention, even if formal arrest is later - however, in effect, such a principle was applied to the facts of that case in holding the arrest to be vitiated. 16. In Niranjan Singh (supra), the Hon’ble Apex Court has explained that ultimately the meaning of the term ‘custody’ is that the law has taken control of the person and that interpreting the term custody in any other manner would be what the Hon’ble Apex Court held as – “unfair evasions of the straightforwardness of the law.” 17. In terms of the principles of law discussed above, in the instant case, the production being interpreted to be beyond the period of 24 (twenty four) hours Page No.# 6/6 of arrest would have the effect of vitiating the arrest and making further detention untenable, entitling the petitioner to bail. 18. Accordingly, in the facts and circumstances and in view of the above discussion, I allow this bail petition and the accused person is allowed to go on bail of Rs.1,00,000/- lakh with two sureties of the like amount, one of whom has to be from the State of Assam - to the satisfaction of the learned Special Judge, Hojai. The following conditions are imposed:- (i) The accused person shall not abscond and he shall be available for the remaining trial; (ii) He shall not hamper or tamper with the evidence; (iii) He shall not commit any illegal activities or offences, including any offences under the NDPS Act, (iv) He shall not in any manner intimidate, harass or try to influence any witnesses. 19. Violation of the bail conditions would lead to cancellation of the bail. 20. The bail petition stands allowed and disposed of. JUDGE Comparing Assistant