Page No.# 1/7 GAHC010097412026 2026:GAU-AS:10533 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1311/2026 SHASHIBHUSHAN KUMAR AND ANR S/O RAMNARESH CHAUDHURY, R/O VILL KHILWAT, PS BIDUPUR, DIST VAISHALI, BIHAR 2: AKHILESH KUMAR CHAURASHIYA S/O MAHESH CHAUDHURY R/O VILL KHILWAT PS BIDUPUR DIST VAISHALI BIHA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR D MEDHI, MR. J N SUWAI,MR. S SARKAR Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 30-07-20 26 Heard Mr. D. Medhi, learned counsel for the petitioners and Mr. R. J. Baruah, learned Additional Public Prosecutor, for the State. Page No.# 2/7 2. This petition under Section 483 of the BNSS, 2023 has been filed by the accused/petitioners, namely, (i) Shashibhushan Kumar and (ii) Akhilesh Kumar Chaurashiya, praying for grant of bail in connection with Guwahati G. R. P. S. Case No. 58/2026 registered under Sections 21(c)/29 of the NDPS Act, pending before the Court of learned Special Judge (NDPS), Kamrup (M), Guwahati. The petitioners were stated to have been formally arrested on 19.03.2026. 3. Charge sheet in the case has already been submitted under Sections 21(c)/29 of the NDPS Act. 4. The record in original has been received. 5. The gist of the allegations is about recovery of 469 grms. of suspected heroin from the possession of the petitioners. 6. Learned counsel for the petitioners submits that as per the FIR, the checking was conducted on Coach No. B-13 of 20503 DN New Delhi-Rajdhani Express at around 06:10 am on 18.03.2026 and the seized articles along with the apprehended persons were brought to GRPS, Guwahati on the same day. As per Notice under Section 47 BNSS issued to the petitioners, they were arrested on 19.03.2026 at 12:05 p.m. and 12:10 p.m. respectively. Subsequently, the petitioners were produced before the Magistrate on 19.03.2026, but the time of such production was not mentioned in the forwarding report or in the order of remand dated 19.03.2026. Since the contraband was allegedly detected at 06:10 am on 18.03.2026 and recovery thereof was also made from the petitioners at that time, they ought to have been produced before the Magistrate within 24 hours as per mandate of Article 22 (1) of the Constitution of India. But the said production was done much beyond the aforesaid period of Page No.# 3/7 24 hours. 7. In support of his contentions the learned counsel for the petitioners 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. 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 search of the Coach of Train commenced at around 06:10 am on 18.03.2026 and the contraband was also recovered from the possession of the petitioners. Furthermore, the seizure list available with the TCR shows the date and time of seizure as 18.03.2026 at 09:40 hrs. Since the date and time of arrest is shown in the Notice under Section 47 BNSS as 19.03.2026 at 12:05 pm and 12:10 pm respectively, the petitioners could not have been produced before the Magistrate before that time on 19.03.2026 which is beyond 24 hours, considering the time of arrest either as 09:40 am, when the seizure was made or at 06:10 am when the search was commenced on 18.03.2026. It can be nobody’s case that even after seizure of the contraband, the petitioners were at liberty to move anywhere as per their wish. Therefore, the petitioners must be considered to have been under Page No.# 4/7 effective detention atlest from 09:40 am at 18.03.2026, although the date and time of arrest as per arrest memo is shown as 18.03.2026 at 09:00 pm. Therefore, since the petitioners were produced before the Magistrate on 19.03.2026 after 12:05/12:10 pm, the period of custody had already exceeded 24 hours. 11. 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 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 Page No.# 5/7 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 non-fulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA.” 12. 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 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 Page No.# 6/7 accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.” 13. 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. 14. 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.” 15. 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 of arrest would have the effect of vitiating the arrest and making further detention untenable, entitling the petitioner to bail. 16. Accordingly, in the facts and circumstances and in view of the above discussion, I allow this bail petition and the accused petitioners, namely, (i) Shashibhushan Kumar and (ii) Akhilesh Kumar Chaurashiya are allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh) each only, with two sureties each of the like amount, one of whom has to be from the State of Assam - to the satisfaction of the learned Special Judge (NDPS), Kamrup (Metro), Guwahati. The following conditions are imposed:- (i) The accused persons shall not abscond and they shall be available for the remaining trial; Page No.# 7/7 (ii) they shall not hamper or tamper with the evidence; (iii) they shall not commit any illegal activities or offences, including any offences under the NDPS Act, (iv) they shall not in any manner intimidate, harass or try to influence any witnesses. 17. Violation of the bail conditions would lead to cancellation of the bail. 18 The bail petition stands allowed and disposed of. 19. The records received in original is returned herewith. JUDGE Comparing Assistant