Page No.# 1/9 GAHC010095692026 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1283/2026 PARVINA KHATUN BIBI WIFE OF HUSSAIN ALI RESIDENT OF DINHATA-II SADIALER KHUTI, P.S. SAHEBGANJ DIST. COOCH BEHAR, WEST BENGAL. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. D SARMAH, MR A AHMED,B. D. KAKATI,S. J. SAHARIAH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 18.08.2026 1. Heard Mr. D. Sarmah, the learned counsel for the petitioner. Also heard Mr. B. Sarma, the learned Additional Public Prosecutor for the State. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Parvina Khatun Bibi, who has been detained behind the bars since 07.05.2025, in connection with NDPS Case No. 360/2025, corresponding Page No.# 2/9 to Panbazar P.S. Case No. 161/2025, under Sections 22(c)/29 of the NDPS Act, 1985. 3. The gist of the accusation in this case is that on 07.05.2025, one Debojit Baishnab had lodged an FIR before the Officer-In-Charge of Panbazar Police Station alleging, inter alia, that on receipt of an information through reliable sources that some narcotic substance is being transported from Silchar to Guwahati Railway station, a search team was constituted. The said team arrived at platform No. 3 of the Guwahati Railway Station on the said day and intercepted the suspect in front of a tea stall named Rambhajan Gond. 4. The suspect was identified as Ms. Parbina Khatun (present petitioner) and during search, one packet wrapped in brown color tape was recovered from her possession. The said packet contained twenty thousand YABA tablets suspected to contain Methamphetamine. 5. Mr. D. Sarmah, the learned counsel for the petitioner has submitted that before filing the instant bail application, the petitioner had earlier approached this Court on two occasions. However, the prayer for bail was rejected on both occasions by this Court. He submits that her last bail application was rejected on 17.02.2026 in Bail Application No. 3983/2025. 6. The learned counsel for the petitioner submits that this time the petitioner has prayed for bail mainly due to violation of her fundamental right guaranteed under Article 22(1) of the Constitution of India read with Section 58 of BNSS 2023. He submits that though the petitioner was detained by the police in connection with the seizure of contraband made in this case on 07.05.2025 at 10:30 AM, however, she was not produced before the nearest Magistrate within Page No.# 3/9 24 hours of the date and time of her arrest. 7. He submits that though in the seizure list, it is clearly indicated that the seizure of the contraband which was recovered from the possession of the present petitioner was made on 07.05.2025 at 10:30 AM. However, she was shown arrested in the arrest memo only on 08.05.2025 at 10:00 AM, which he submits is not factually correct. He submits that the petitioner was subjected to medical examination, before her production before the concerned Magistrate, at Dhirenpara, at 12:06 PM, on 08.05.2025 and only thereafter she was produced before the Magistrate, which itself indicates that the petitioner was produced before the Magistrate after 24 hours of her detention by the police. 8. The learned counsel for the petitioner has submitted that though the petitioner was subjected to restraint and was kept in custody of the police authority during the search and seizure procedure after 10:30 AM on 07.05.2025. However, a wrong time and date of her arrest has been shown in the arrest memo. He submits that this is in violation of the requirement as mandated by Article 22 of the Constitution of India. He submits that continued detention of the present petitioner in custody of police from 10:30 AM on 07.05.2025 beyond the period of 24 hours till her production before the Magistrate has rendered her arrest completely illegal due to violation of Article 22 of the Constitution of India. As such, he submits that on this ground alone, the petitioner is entitled to get bail. In support of his submission, the learned counsel for the petitioner has cited following rulings: - (i) “Directorate of Enforcement Vs Subhash Sharma”reported in “2025 SCC OnLine (SC) 240”; Page No.# 4/9 (ii) “Yahiya Khan Vs. State of Assam”, reported in “2026 SCC OnLine GAU 2883”; (iii) “Makakmayum Mamtajur Rahman Vs. State of Assam” reported in “2026 SCC OnLine GAU 4608”. 9. On the other hand, Mr. B. Sarma, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the present petitioner on the ground that the contraband seized in this case is of commercial quantity and as such the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He further submits that recently a Division Bench of this Court in the case of “Injamamul Hoque Alias Injamul Hoque Vs. State of Assam”[order dated 12.08.2026, in Bail Application No. 1239/2026] has observed that mere failure to comply with the procedural safeguard regarding statutory provisions dealing with the liberty of individual, in itself, and in isolation, may not render an arrest void ab initio or non est. He submits that the Division Bench has held that legality of the arrest ought to have been considered in the totality of the circumstances including, (a) whether the arrest was otherwise authorized by law; (b) whether grounds of arrest were communicated; (c) whether the relatives or friends were informed, as required; (d) whether the arrestee was produced before the Magistrate within prescribed time; and (e) whether prejudice or abuse has resulted from such omission in framing the arrest memo. 10. He submits that in the instant case, the petitioner, while approaching this Court on earlier occasion never took the plea that she was produced before the Magistrate beyond the period of 24 hours of her date and time of arrest. He further submits that in earlier two bail applications, the petitioner sought bail on the grounds of lack of merit of the case against her. He further submits that Page No.# 5/9 recently, the Apex Court of India in the case of “State of Meghalaya Vs. Sonam Raguvanshi @ Bitti @ Bittu” [order dated 23rd July, 2026, in SLP (Criminal) No. 11944/2026] has observed that when an accused person files a bail application, the stage might become irrelevant. However, when the accused person warranted a finding on merits on earlier occasion, it is not open for him/her to go back and raise the plea or the issue pertaining to grounds of arrest thereafter. 11. He submits that in the instant case, on the same lines, when once the bail application of the present petitioner was considered on merit, she cannot go back and raise the plea regarding violation of her fundamental right guaranteed under Article 22 of the Constitution of India on the ground that she was not produced before the nearest Magistrate within 24 hours of her date and time of arrest. 12. I have considered the submissions made by learned counsel for both sides and have gone through the materials on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions. 13. On perusal of the records, it appears that in the first bail application by the present petitioner, she took the plea of non-compliance of the guidelines of the Apex Court in the case of “D. K. Basu Vs. State of West Bengal” reported in “(1997) 1 SCC 416” as well as the plea that the grounds of arrest, in writing, were not communicated to the relatives/friends/nominated persons of the petitioner as required under Section 48 of BNSS. It was also pleaded that in the process, the fundamental rights guaranteed to the petitioner under Article 22(1) of the Constitution of India has been violated. However, this Court by its order Page No.# 6/9 dated 06.08.2025, passed in Bail Application No. 2289/2025 had rejected the said contentions and dismissed the bail application. The second bail application filed by the petitioner was dismissed by a Co-ordinate Bench of this Court on 17.02.2026, passed in Bail Application No. 3983/2025 without going into merits of the case. The said bail application was dismissed mainly on the ground that the engaged counsel for the petitioner tried to mislead the Court by suppressing the fact of rejection of bail application by the petitioner on earlier occasion. Thus, the merit of the case has not been gone into by this Court on earlier occasion, hence, the embargo indicated in paragraph No. 12 of the judgment in the case of “State of Meghalaya Vs. Sonam Raguvanshi @ Bitti @ Bittu” (supra) is not applicable in this case. 14. From the materials on record, it appears that the contraband, in possession of the present petitioner was recovered in the morning of 07.05.2025. It also appears that the seizure of the contraband was made at 10:30 AM on 07.05.2025 from the possession of the present petitioner as reflected from the seizure list prepared in this case. It also appears on perusal of G.D. Entry No. 013 made in Panbazar Police Station on 07.05.2025 that the petitioner was taken to Panbazar Police Station along with the seized items at 3:14 PM. Thus, it appears that since the seizure of the contraband from the possession of the petitioner at 10:30 AM on 07.05.2025 till she was produced before the Panbazar Police Station, she was in custody of police. It also appears that the petitioner was taken to Dhirenpara for her medical examination on 08.05.2025 at about 12:06 PM. Thus, it is apparent that till that time she was not produced before the Magistrate after her arrest in connection with the aforesaid case. Page No.# 7/9 15. Though, in the memo of arrest which was prepared on 08.05.2025, the date and time of arrest has been shown as 08.05.2025 at 10:00 AM, however, the materials on record indicates that she was under the control of arresting authority since the seizure of the contraband i.e., on 07.05.2025 at 10:30 AM. Thus, the time and date of arrest which is shown in the arrest memo, apparently is not the actual date and time when the petitioner was put under restraint and was for all purpose in the custody of police. The practice of indicating wrong date and time of arrest in the arrest memo, under no circumstances, can be appreciated or encouraged. In the instant case, there is nothing on record to indicate that where the petitioner, who is a lady, was kept on the night of 07.05.2025, since the seizure of contraband was made at 10:30 AM on 07.05.2025 and there is nothing to indicate that the petitioner was allowed to go after the seizure of contraband and thereafter she was again arrested on the next day. The entire purpose of preparing an arrest memo at the time of effecting arrest of a person may frustrate if a wrong date and time is mentioned therein as per the sweet will of the arresting authority. In the arrest memo, the actual date and time when the liberty of arrestee was curtailed and the arrestee was put under de facto custody of the arresting authority has to be stated. Any deviation therefrom would vitiate the very purpose of preparing an arrest memo. 16. The Apex Court in the case of “Directorate of Enforcement Vs Subhash Sharma”(supra), which is a judgment delivered by a Bench of same strength like that of the Bench which delivered the judgment in the case of “State of Meghalaya Vs. Sonam Raguvanshi @ Bitti @ Bittu” (supra) and was prior in time has held as follows: - Page No.# 8/9 “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". 17. In the instant case, there remains no doubt on facts that the fundamental rights guaranteed to the petitioner under Article 21 and 22 of the Constitution of India have been violated by the arresting authority in as much as the petitioner was not produced before the nearest Magistrate within 24 hours of the date and time of her actual arrest. As such, this Court is of considered opinion that the embargo of Section 37 of the NDPS Act, 1985 fades away in view infringement of the fundamental right guaranteed to the petitioner under Article 21 and 22 of the Constitution of India. The petitioner is, therefore, entitled to get bail in this case. 18. In view of the discussions made and reasons cited in the foregoing paragraphs, the petitioner is allowed to go on bail of Rs.1,00,000/- (Rupees One Lakh) with one surety of like amount, subject to satisfaction of the learned Special Judge, Special NDPS Court, Guwahati, with following conditions:- i. That the petitioner shall co-operate in the trial of NDPS Case No. 360/2025; 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, 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; Page No.# 9/9 iv. That the petitioner shall provide her contact details including photocopies of her Aadhar Card or Driving License or PAN card as well as, 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 her leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any offence while on bail. 19. It has come to the notice of this Court that though only scanned copy of the Trial Court record were directed to be called for, however, the original records of NDPS Case No. 360/2025 have been sent by the Trial Court. This is a lapse on the part of the Trial Court and the Presiding Judge of the Trial Court ought to have been more careful while complying with the directions issued by this Court. It also has to take steps for procuring scanner and other necessary office equipment for day-to-day functioning of the Court. 20. The Registry shall immediately send back the Trial Court record along with a copy of this order. 21. This bail application is accordingly disposed of. JUDGE Comparing Assistant