Page No.# 1/10 GAHC010149822026 2026:GAU-AS:13116 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2018/2026 NAZIRUL ISLAM ALIAS NAJIRUL ISLAM S/O SUBED ALI R/O PANBARI, PS DHING, DIST NAGAON ,ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR S M ABDULLAH P, MR. MD IMDAD,MD IMRAN,MD R ISLAM,MS F HUSSAIN Advocate for the Respondent : PP, ASSAM, Linked Case : Bail Appln./2228/2026 INAMUL HOQUE S/O- MAINUL HOQUE VILL SINGIA GAON PS JURIA DIST. NAGAON ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR Page No.# 2/10 ASSAM. ------------ Advocate for : S K PODDAR Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA ORDER Date : 09.09.2026 Heard Mr. S.K. Poddar, learned counsel appearing for the accused-applicant. Also heard Mr. M.P. Goswami, learned Addl. P.P., representing the State respondent. 2. This is an application filed under Section 483 of BNSS, 2023, praying for release of the accused-applicant on bail in connection with Nagaon Police Station Case No. 470/2026 registered under Sections 21(c)/25/29 of NDPS Act. 3. The prosecution case, in brief, as revealed from the FIR dated 18.06.2026, filed before the Officer-in-Charge, Nagaon Police Station, is that, on 18.06.2026, the informant, namely, SI Biman Gogoi of TSI of Town Branch under the Nagaon Police Station, has lodged an FIR alleging, inter alia, that an information was received that a vehicle bearing Registration No. AS-01DB-8800 was traveling from Silchar towards Guwahati to deliver and sell a large quantity of NDPS contraband in Nagaon; that accordingly, the informant and his staff proceeded to Borghat Bypass to conduct a naka checking at the Kathiatoli-Borghat Bypass Road; that during the naka checking on the Kathiatoli-Borghat Bypass Road, the vehicle bearing the aforesaid vehicle was noticed proceeding towards Nagaon; that the vehicle was signaled to stop at the naka checking, but the driver attempted to flee; that the Page No.# 3/10 vehicle was chased and successfully intercepted in front of SIMS Multi Specialty Hospital, Borghat, beneath the Borghat Flyover, Subway, and apprehended three numbers of persons; that during the search, a concealed secret chamber beneath the rear seat of the vehicle was detected and 67 soap boxes containing suspected heroin were recovered; that the gross weight, including the weight of the soap boxes and PP, was found to be 2.559 kg of suspected heroin, along with the PP, which comes to 750.42 grams of suspected heroin, excluding the soap boxes, were recovered; that the involved Hyundai Creta vehicle bearing the aforesaid registration number was also seized. 4. On the basis of the FIR, the police registered Nagaon Police Station Case No. 470/2026 under the aforementioned sections. 5. The accused-applicant, along with the other co-accused persons, was arrested on 19.06.2026 and since then, they are behind the bars. 6. The learned counsel appearing for the accused-applicant submits that the accused-applicant was detained and arrested at 1:00 PM on 18.06.2026; however, he was produced before the concerned Magistrate only at 2:55 PM on 19.06.2026. He submits that, therefore, the accused-applicant has been detained by police beyond 24 hours, which is in violation of Article 22(2) of the Constitution of India. He submits that since the accused-applicant was not produced within a period of 24 hours of his arrest, the same is in violation of the mandates of the Constitution of India, and therefore, their continued detention is illegal and untenable under the law. Accordingly, he prays that since the arrest of the accused-applicant is illegal, the accused-applicant should be enlarged on bail on that ground alone. In support of his submission, the learned counsel for the accused-applicant has referred to the case of Directorate of Enforcement vs. Subhash Sharma, reported in 2025 SCC Page No.# 4/10 OnLine SC 240, and the case of State of Haryana and Others vs. Dinesh Kumar, reported in (2008) 3 SCC 222. 7. The case diary in the instant case has been received. 8. On the other hand, Mr. M.P. Goswami, the learned APP, submits that the accused-applicant was arrested at 1:00 PM on 19.06.2026 as per the arrest memo, and he was produced before the concerned Magistrate at 2:55 PM on the same date; and therefore, there is no violation of Article 22(2) of the Constitution of India, as alleged by the counsel appearing for the accused-applicant. 9. The case diary so produced has been perused by this Court. This Court has also heard the submissions made by the counsel appearing for the respective parties. 10. It is seen from the FIR dated 18.06.2026 that the information about the alleged vehicle carrying NDPS contraband was received by the police approximately at 10:15 a.m. On receipt of the aforesaid information, police went for naka-checking and thereafter, the police intercepted the vehicle with the alleged contraband narcotics. 11. On perusal of the case diary, it is seen that the police had intercepted the vehicle at about 10:55 to 11:05 a.m. on 18.06.2026, and at about 11:40 a.m, the police had apprehended the accused-applicant along with other two accused persons. After a thorough search, the police seized the contraband materials vide the seizure memo at 1:00 p.m. on 18.06.2026 as revealed from the seizure memo also. 12. It is also seen that after apprehension, the police completed the required formalities and issued the arrest memo to the accused-applicant along with the Page No.# 5/10 other co-accused persons only at 1:00 p.m. on 19.06.2026 and thereafter, produced the accused-persons before the learned Court of SDJM, Nagaon at 2:55 p.m. Therefore, it is seen that though the accused-applicant along with the other co- accused persons were detained by police at about 11:00 a.m., the accused-applicant along with the other co-accused were produced before the learned Court of SDJM, Nagaon only at 2:55 p.m., which is beyond 24 hours of their detention and/or arrest by the police. In this connection, the relevant statutory provision regarding detention of an accused person by police, i.e., Section 58 of BNSS being relevant is quoted herein below: - "58: No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court, whether having jurisdiction or not." 13. It may also be relevant to consider Article 22(2) of the Constitution of India, which provides that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without authority of a Magistrate. 14. In the case of Directorate of Enforcement (supra), the arrest of the petitioner-accused was held to be vitiated as he was detained at 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 Page No.# 6/10 period of 24 hours from 11:00 a.m. on 05.03.2022, the production was held to be beyond 24 hours and therefore, the arrest and further detention vitiated. In this connection, paragraph numbers 6, 8, and 9 being relevant are extracted herein 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. Page No.# 7/10 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.” 15. The other case relied upon by the learned counsel appearing for the accused- applicant is Dinesh Kumar (supra), wherein the Hon’ble Supreme Court, under similar facts, held that law relating to the concept of "arrest" or "custody" has been correctly stated in the case of Niranjan Singh vs. Prabhakar Rajaram Kharote, reported in (1980) 2 SCC 559. In the aforesaid case of Dinesh Kumar (supra), the Hon’ble Supreme Court referred to Paragraphs 7, 8, and the relevant portion of Paragraph 9 of the case of Niranjan Singh (supra), which are provided herein below: - “7. When is a person in custody, within the meaning of Section 439 CrPC? 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 court's 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 Page No.# 8/10 power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling 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 dubieties 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. 8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. 9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions." 16. From a reading of the aforesaid two cases of the Hon’ble Supreme Court, it is clear that once a person is taken under control by the police authorities, though the formal arrest memo was not issued to the arrested person, the action of the police authorities can be termed as the "arrest" of the accused person. Paragraph 7 of the case of Niranjan Singh (supra) has made the issue very clear in the following words: - "……………The equivocatory quibbling and hide-and-seek niceties sometimes heard in court that police have taken a man into Page No.# 9/10 informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody, and other like terminological dubieties are unfair evasions of the straightforwardness of the law." 17. Coming back to the facts of the instant case, it is seen from the records that the accused-applicant and the other co-accused persons were apprehended latest by 1:00 p.m. on 18.06.2026 when the seizure was made. However, they were produced before the learned court of SDJM, Nagaon only at 2:55 p.m. on 19.06.2026, which is well beyond 24 hours as mandated under Section 58 of BNSS as well as Article 22(2) of the Constitution of India. 18. It is not disputed in the instant case that the time might have consumed for the accused-applicant along with the co-accused persons to travel from the place of arrest to the learned court of SDJM, Nagaon was not more than 30 minutes. Therefore, it cannot be accepted by any reason that the police took excess time in transporting the accused-applicant along with the other co-accused to the learned court of SDJM, Nagaon and thereby unable to reach the Court within 24 hours. 19. Taking into account the entire facts of the case as discussed above, it is evident that there is a clear violation of Article 22(2) of the Constitution of India in the instant case by not producing the accused-applicant and other co-accused persons before the learned SDJM, Nagaon, within a period of 24 hours of their arrest. Consequently, this violation vitiates the entire process of arrest and production of the accused-applicant. Accordingly, the further detention of the accused-applicant cannot be sustained due to the illegality in their arrest and production before the learned trial court beyond the time mandated by Article 22(2) of the Constitution of India. Page No.# 10/10 20. Accordingly, in the facts and circumstances of the case and in view of the above discussion, this Court directs that the accused-applicant shall be released on bail upon furnishing a bail bond of Rs. 1,00,000/- (Rupees One Lakh) with a surety of the like amount to the satisfaction of the learned SDJM, Nagaon, subject to the following conditions: - 1. That the accused-applicant shall fully cooperate with the investigation and make himself available as and when called for by the Investigating Officer (I.O.); 2. That the accused-applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or police. 3. That the accused-applicant shall not commit any illegal activities or offenses, including any offense under the NDPS Act. 21. In the event of any violation of the bail conditions, the police/prosecution authorities shall be at liberty to file an application seeking cancellation of bail. 22. In terms of the aforesaid directions, the instant bail application stands disposed of. JUDGE Comparing Assistant