Page No.# 1/9 GAHC010128122026 2026:GAU-AS:10509 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1726/2026 ZAKIR HUSSAIN AND ANR SON OF LATE NUR HUSSAIN, RESIDENT OF 08 KALIBARI PATH NEAR MASJID DIMORUGURI, P.S. NAGAON SADAR, DISTRICT NAGAON, ASSAM. 2: SANJEEV RAOSHAN SON OF LATE CHANDESHWAR GIRI RESIDENT OF PRADUMAN CHHAPRA WARD NO. 1 P.S. KESHARIA DISTRICT EAST CHAMPARAN BIHAR. PRESENT ADDRESS 08 KALIBARI PATH NEAR MASJID DIMORUGURI P.S. NAGAON SADAR DISTRICT NAGAON ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MOTIUR RAHMAN, R ALI Advocate for the Respondent : PP, ASSAM, Page No.# 2/9 B E F O R E HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 29.07.2026 Heard Mr. M Rahman, learned counsel for the petitioner and Mr. M P Goswami, learned Additional Public Prosecutor for the State. 2. This petition under Section 483 of the BNSS, 2023 has been filed by the accused-petitioners, namely, Zakir Hussain and Sanjeev Raoshan, praying for grant of bail in connection with NDPS Case No.39/2026 under Sections 18(b)/25/29 of the NDPS Act, 1985 pending before the Court of learned Special Judge, NDPS, Karbi Anglong, Diphu, arising out of Khatkhati P.S Case No. 41/2026. The petitioner was stated to have been formally arrested on 26.03.2026. 3. It is submitted at the Bar that charges have already been framed under Section 18(b)/25/29 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 22.288 kg of suspected Page No.# 3/9 opium from the possession of the petitioner and two others. 6. Mr. M Rahman, learned counsel submits that, though the petitioner was shown to have been formally arrested on 26.03.2026 at 10:00 a.m., and as reflected in the Medical Report, he was examined by the Doctor on 26.03.2026 at 4:25 pm but as per seizure list seizure was made at 01:47 pm and 03:11 pm on 25.03.2026 and FIR was also lodged on 25.03.2026. The remand order was passed by the Magistrate on 26.03.2026 after 4:25 pm, when the medical examination was done, thereby, his production time 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. 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 Page No.# 4/9 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 25.03.2026, though as per the arrest memo, they were formally arrested on 26.03.2026 at 10:00 a.m. The accused persons were produced before the Magistrate on 26.03.2026 but the time is not mentioned in the remand order. Since the medical examination of the accused was conducted at 4:25 p.m. on 26.03.2026, he could not have been produced early i.e. 4:25 p.m. 11. What is however, more significant to notice in the instant case is that the seizure was made between 01:47 p.m. to 03:11 p.m. on 25.03.2026 as per the seizure list. It cannot be anybody’s case that the petitioner was not effectively in custody when the seizure exercise of the contraband was commenced i.e. at 01:47 pm on 25.03.2026. But he was produced before the Magistrate after 4:25 p.m. on 26.03.2026, i.e. well beyond 24 hours of effective custody, even allowing for one hour travel since between the P.O and the Court, determining the time of arrest to be no later than 01:47 p.m on 25.03.2026. Page No.# 5/9 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 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 4 th 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 6 th March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6 th 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 Page No.# 6/9 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 non-fulfillment 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 Niranjan Singh Page No.# 7/9 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 Page No.# 8/9 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 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, Karbi Anglong, Diphu. The following conditions are imposed:- (i) The accused person shall not abscond and he shall be available for the remaining trial; Page No.# 9/9 (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