Page No.# 1/13 GAHC010069872026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./980/2026 P MARAIPA AND 2 ORS S/O PHIZU R/O VILL- TAPHOU NAGA, PO AN DP.S. SENAPATI, DIST. SENAPATI, MANIPUR-795106, 2: SAHIL GURUNG S/O SHRI PRAKASH GURUNG R/O VILL- TAPHOU NAGA P.O. AND P.S. SENAPATI DIST. SENAPATI MANIPUR-795106. 3: P. SOUL S/O PHIZU R/O VILL- TAPHOU NAGA P.O.AND P.S. SENAPATI DIST. SENAPATI MANIPUR-795106 VERSUS THE UNION OF INDIA REPRESENTED BY THE SC, DRI Advocate for the Petitioner : MR. M BISWAS, MS. A K CHOPHI,J SINGPHO,A GHOSAL Advocate for the Respondent : SC, DRI, Page No.# 2/13 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date - 03.06.2026 1. Heard Mr. M. Biswas, the learned counsel for the petitioners. Also heard Mr. S. C. Keyal, the learned senior counsel assisted by Ms. M. Deka, the learned counsel for DRI. 2. This application under Section 483 of BNSS, 2023, has been filed by the petitioners, namely, (1) P. Maraipa, (2) Sahil Gurung, and (3) P. Soul, who are detained behind the bars since 13.12.2024 (for the last 1 year 5 months 19 days) in connection with NDPS Case No. 144/2025, corresponding to DRI Case No. 21/CL/NDPS/HEROIN/DRI/GZU/2024-25 registered under Sections 21(c)/22(c)/23(c)/25/29 of the NDPS Act, 1985. The aforesaid case is presently pending before the Court of the learned Additional Session Judge, Kamrup (M) No. 5. 3. It is pertinent to mention here that this is for the third occasion the petitioners have approached this Court, seeking bail in the instant case. However, this time some new grounds have been taken by the petitioners for seeking bail in this case. 4. The gist of accusation in this case is that on 13.12.2024, on receipt of an information through reliable sources by the Officers of DRI Guwahati Zonal Unit that a truck bearing Registration No. AS-25-EC- 3517 carrying two male persons and closely escorted by one white colour Toyota Fortuner car bearing Registration No. UK-07-BS-0189 Page No.# 3/13 carrying two male persons and one female person are coming from Jorabat side, a team of DRI officers were constituted and a search operation was conducted. The search team intercepted one Tata truck bearing Registration No. AS-25-EC-3517, where the person sitting in the front cabin of the said truck was identified as P. Soul as well as one Sailash Stephen, who is the driver of the said truck. The search team also intercepted one Toyota Fortuner car bearing Registration No. UK-07-BS-0189 and the occupant of the said vehicle were identified as Sahil Gurung, Pretty Thoitak and P. Maraipa. 5. During interrogation of the occupants of the vehicle, Sailash Stephen i.e., the driver of the said truck and Ms. Pretty Thoitak revealed that there are 274 numbers of soap cases concealed in specially built cavity/chamber in the driver's cabin of the said truck. Accordingly, a search was conducted and 274 soap cases containing about 3180.83 grams of suspected heroin were recovered therefrom and ultimately seized. 6. Mr. M. Biswas, the learned counsel for the petitioners has submitted that in this bail application the petitioners are praying for bail mainly on three new grounds, which were not agitated earlier. Though, he submits that one of the grounds, i.e., grounds of non-compliance of provisions under Section 48 of the BNSS, 2023 was taken earlier, however, some new materials are produced to press that ground again. 7. The learned counsel for the petitioners has submitted that the petitioners were apprehended on 13.12.2024, at 00.45 hours, by DRI officials and thereafter, they were taken to DRI office along with their Page No.# 4/13 respective agents with close escort by DRI officials and they reached the DRI office at 2.30 hours on 13.12.2025. 8. The learned counsel for the petitioners has submitted that from the time of their apprehension, since their production before the Court, the petitioners were in custody of DRI, however, he submits that in the arrest memo, which was prepared by the arresting authority, in this case, the time of arrest has been shown as 20.00 hours on 13.12.2025, which is not correct. 9. The learned counsel for the petitioners submits that the petitioners were produced before the Court on the next day, i.e., on 14.12.2024 at about 2.00 pm, which is beyond the period of 24 hours from the time of their apprehension in the aforesaid case. 10. He, therefore, submits that in the instant case, there has been violation of the mandatory constitutional provision contained in Article 22 (2) of the Constitution of India and as such, their arrest has become vitiated and on that ground itself, he submits that the petitioners are entitled to get bail. In support of his submission, the learned counsel for the petitioners has cited the following rulings: a. Directorate of enforcement Vs. Subhas Sharma reported in 2025 Online SC 240 b. Mihir Ranjan Shah Vs. State of Maharashtra reported in 2025 Online SC 2356 c. Kiran Singha Vs. State of Assam (Order dated 13.05.2026 in Bail Application No. 929/2026) 11. The learned counsel for the petitioners has also submitted that on the last occasion, when the petitioners approached this Court seeking bail, Page No.# 5/13 though, they also took plea of violation of mandatory provisions of Section 48 of the BNSS, 2023 in as much as the written notices indicating the grounds of arrest of the petitioners were not communicated to the relatives/friends/nominated persons as soon as possible. However, on that occasion, this Court rejected the said plea as nothing was shown by the petitioners to indicate that there has been any such delay on the part of the DRI. The learned counsel for the petitioners submits that now in the additional affidavit filed by the present petitioners in the instant bail application, they have annexed the copy of the envelopes in which the notices were sent to them by the Additional Director General, Directorate of Revenue Intelligence in the aforementioned case. He submits that on perusal of the aforementioned envelopes, it is clear that the said notices were posted by speed post only on 28.12.2024, i.e., after 15 days of the date of arrest of the present petitioners. He, therefore, submits that in the instant case, there has been an inordinate delay in posting the notices under Section 48 of the BNSS, 2023, by the speed post, by DRI to the relatives of the petitioners and such inordinate delay in itself is sufficient to come to a conclusion that there has been a violation of the mandate of Section 48 of the BNSS, 2023 in the instant case. 12. He submits that in support of his submission, the learned counsel for the petitioners has cited a ruling of the Division Bench of this Court in the case of “National Investigation Agency vs Thangminlen Mate @ Lenin Mate” (21.08.2025 in Criminal Appeal No. 234/2025). He submits that any violation of the mandatory requirement of Section 48 of the BNSS, 2023 entitles the petitioners to get bail on that count Page No.# 6/13 also. He has also cited the following rulings in support of his submission: a. Vihaan Kumar Vs. State of Haryana and Another reported in 2025 SCC Online SC 263 b. Kasireddy Upender Reddy Vs. State of Andhra Pradesh and Others reported in 2025 SCC Online SC 1228 13. The learned counsel for the petitioners has also submitted that though the petitioners were arrested on 13.12.2024, however, till date the charges are yet to be framed in the aforesaid case and the petitioners are languishing behind the bars for last 1 year 5 months 19 days and there has been an inordinate delay in progress of the trial. 14. He submits that inordinate delay and prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985 and as such, as there is no fault on the part of the present petitioners for the trial not progressing, he submits that the petitioners are entitled to get bail on that count also. In support of his submission, the learned counsel for the petitioners has cited the following rulings: a. Raja Durai Vs. State of Tamil Nadu (order dated 05.05.2026 in SLP Criminal No. 4729/2026) 15. On the other hand, Mr. S. C. Keyal, the learned senior counsel for DRI has vehemently opposed the grant of bail to the present petitioners on the ground that this is for the third time, the petitioners have approached this Court and on earlier occasions this Court after considering their case, on merit, have rejected their prayer for bail, therefore, they are not entitled to get bail in this case. He submits that the quantity of contraband involved in this case is a huge quantity of Page No.# 7/13 3180.830 grams of heroin value of which is approximately estimated by the DRI at Rs. 22,26,58,100/- 16. He submits that in a case involving such a huge quantity of contraband, the mere delay in progress of trial will not override the embargo of Section 37 of the NDPS Act, 1985. He submits that in such cases the constitutional right guaranteed under Article 21 of the Constitution of India as well as the embargo of Section 37 of the NDPS Act, 1985 shall have to be read harmoniously and unless the petitioners are able to overcome the twin conditions mentioned in Section 37 of the NDPS Act, 1985, they are not entitled to get bail in such case. In support of his submission, he has cited the ruling of the Apex Court in the case of “State of Punjab Vs. Surinder Singh Alias Gora Alias Chaga” reported in 2026 Live Law SC 421. 17. He further submits that there has been no violation of Section 48 of the BNSS, 2023 in this case and all the petitioners and their family members were duly communicated about the grounds of arrest both telephonically as well as in writing as mandated under Section 48 of the NDPS Act, 1985. He further submits that this plea was earlier taken by the petitioner, however, this Court did not find any merit in the submission and had earlier rejected the said plea and hence, he submits that same plea cannot be taken again by the petitioners. 18. The learned senior counsel for DRI further submits that in this case, there has been no violation of mandate of Article 22 (2) of the Constitution of India in as much as the arrest memo prepared by the arresting authority in this case clearly indicate the date and time of arrest of the present petitioner as 13.12.2024 at 20.00 hours. As such, he submits that the petitioners were produced well before the Page No.# 8/13 Magistrate within the prescribed period of 24 hours from the time of the arrest as mandated under law. He submits that in the NDPS cases, the Investigating Officer has to perform many legal formalities and only after completion of formalities, the petitioners were arrested, at the time and date as shown in the arrest memo. 19. He submits that for the purpose of ascertaining as to whether there has been any violation of the provision of Article 22 (2) of the Constitution of India or not, this Court has to look into the time of arrest as indicated in the arrest memo and as such, he submits that there has been no violation of any mandatory constitutional or statutory provision by the arresting authority in this case. He, therefore, prays for dismissing the present bail application. 20. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides. 21. It is pertinent to mention herein that this is for the third time the petitioners have approached this Court seeking bail in connection with the above noted case. It appears that on the earlier occasion when the petitioners approached this Court, they also took the plea of non- compliance of the mandate of Section 48 of the BNSS, 2023. However, by order dated 04.06.2025, passed in Bail Application No. 1462/2025, this Court had rejected the said plea. While rejecting the plea, in paragraph No. 25 of the said order, this Court has also stated the reasons for doing so. The photocopy of the envelops of the speed post which are annexed in the instant bail application by the petitioners, were also produced before the Court on earlier occasion, however, this Page No.# 9/13 Court rejected the plea of non-compliance of mandatory provisions contained in Section 48 of the BNSS, 2023. This Court may be right or wrong while rejecting the said plea, however, once it has decided the said plea, the same matter, cannot be agitated again before the same Court, by filing a fresh bail application, without showing any new ground. The appropriate remedy is to approach the higher Court. 22. As regards the second contention of violation of provisions of Article 22 of the Constitution of India is concerned, it appears that though, the petitioners were arrested on 13.12.2024, i.e., more than 1 years 5 months ago, however, it is for the first time in the instant bail application, they have raised the plea that the time of arrest mentioned in the arrest memo, i.e., 20:00 hours on 13.12.2025, has been wrongly mentioned therein and that the actual time of their arrest is 00:45 hours. 23. This Court has no second opinion as regards the legal proposition that in the arrest memo, the date and time of actual apprehension of an accused has to be mentioned. The meaning of arrest is to take a person in custody. It means that the law has taken control of such person and he is in the physical hold of an arresting authority with coercive power [See Niranjan Singh and Another Vs. Prabhakar Raja Ram Kharote and Others reported in (1980) 2 SCC 559]. The practice of showing incorrect time in the arrest memo can never be encouraged for whatsoever reason as it tends to defeat the constitutional protection guaranteed to an arrested person. However, as to what was the actual time of putting the person under lawful restraint so that he may be deemed to be in custody is a question of fact and same has to be determined after considering the facts and circumstances of a particular case. Page No.# 10/13 24. In the instant case, in the complaint petition filed by the DRI, in paragraph No.7 of the same, it has been categorically stated by the DRI that the petitioners were summoned to accompany them to the DRI Office. It is also stated therein that the petitioners were requested to hand over their mobile phones, which they did voluntarily. Nothing is there to indicate that any coercion was used on the petitioners at any point of time, neither the same has been alleged by the petitioners 25. It also reveals that thereafter, the petitioners consented to be searched in presence of a gazetted officer, and accordingly, as per the consent of the petitioners, the search was so made. However, nothing was found from their personal search. Thereafter, on disclosure made by the driver of the truck bearing Registration No. AS-25-EC-3517, namely, Sri Sailash Stephen and Ms. Pretty Thoitak, who were seated in the front seat of the Toyota Fortuner vehicle, the contraband seized in this case was recovered concealed in secret chambers located between driver's cabin and load space of the Tata truck. 26. Thereafter, the procedures of seizing the recovered contraband were conducted. It appears from record that there is no indication that during the entire procedure of the search and recovery of the contraband, any restraint was put on the petitioners by applying any force. It appears that they voluntarily cooperated with the DRI officials in the entire procedure of search and seizure. 27. It is only after it was ascertained that huge quantity of heroin has been recovered, the petitioners were arrested at 8.00 p.m. and arrest memo was prepared showing the time and date of the arrest, therein. Had the time of arrest been wrongly mentioned in the arrest memo, then for the last one year and five months, the petitioners got several Page No.# 11/13 opportunities to point out that the time of arrest stated in the memo of appeal is wrongly mentioned and that they were arrested prior to the time mentioned in the arrest memo. The petitioner never pleaded that they did not voluntarily cooperate during the procedure of search and seizure and that the entire procedure of search and seizure was conducted after arresting them. The arrest memo categorically mentions the date and time of arrest as at 20:00 hours on 13.12.2024. If date and time of arrest is wrongly shown in the arrest memo, the petitioners ought to have raised the objection at the earliest point of time. However, they have failed to do so and raised the said plea only when they are before this Court for the third occasion, which raises doubt about veracity of their plea. 28. Under the above facts and circumstances, this court is reluctant to agree to the contention of the learned counsel for the petitioners that the date and time of arrest shown in the arrest memo is wrong. As such, the petitioners have failed to prove any violation of mandatory provisions of Article 22(2) of the Constitution of India. 29. The last plea taken by the learned counsel for the petitioners seeking bail in this case is that of prolonged incarceration. In the instant case, the contraband which was recovered from the position of petitioners is 3180.83 grams of heroin, which is a huge quantity of heroin by any standards. 30. Apparently, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. The Supreme Court of India, in several of its judgments have observed that the prolonged incarceration overrides the embargo of Section 37 of the NDPS Act, 1985. There cannot be any dispute to the aforesaid proposition. Page No.# 12/13 31. However, as to what would be the prolonged incarceration in a particular case would depend upon the facts and circumstances of that case, and no straitjacket formula or a particular period of incarceration can be regarded as prolonged incarceration. It may vary depending on the facts and circumstances of the particular case. The ruling cited by learned counsel for the petitioners in the case of “Raja Durai Vs. State of Tamil Nadu” (Supra), where the Apex Court has allowed the accused persons in that case to be released on bail in an offence involving commercial quantity of contraband when the said accused has been found to be behind the bars for one year, may not be applicable to the facts of the present case as in the case cited by the learned counsel for the petitioners, the contraband involved was 22.9 kgs of ganja, i.e., only approximately 3 kgs more than the prescribed limit of 20 kgs of ganja. Whereas, in the instant case the statutory prescription for heroin to be considered as commercial quantity is 250 grams, however, the quantity of contraband seized in this case, i.e., 3180.83 grams, is much higher than that limit. As such, in the instant case considering the quantity of contraband seized as well as facts and circumstances of this case, the period of one year six months cannot be regarded as long enough to give the benefit of bail to the petitioners on the ground of prolong incarceration. 32. In view of the discussions made and reasons cited in the foregoing paragraphs, this Court found that the petitioners, who are involved in trafficking of huge quantity of Heroin cannot be released on bail at this stage. 33. This bail application is, accordingly dismissed. Page No.# 13/13 34. The Trial Court is, however, directed to expedite the trial and finish the same at the earliest time possible. JUDGE Comparing Assistant