Page No.# 1/6 GAHC010140142026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./999/2026 FAIJUR RAHMAN SON OF ABDUS SHAHID, RESIDENT OF KALANI JALAH, P.O. JURIA, RUPAHI, NAGAON, DISTRICT - NAGAON, ASSAM, PIN 782124 VERSUS THE STATE OF ASSAM REPRESENTED BY PP, ASSAM Advocate for the Petitioner : MR. B BARUAH, I L NGAMLAI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 15.07.2026 Heard learned counsel Mr. B. Baruah for the petitioner Faijur Rahman, who has filed this application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with prayer to set aside and quash the order dated 23.06.2026 passed by the learned Special Judge, Dima Hasao, Haflong, issuing NBWA Page No.# 2/6 directly against the petitioner in NDPS Case No. 04/2026 arising out of Harangajao P.S. Case No. 16/2025 under Sections 21(C)/29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. It is submitted by the learned counsel for the petitioner that charge sheet was laid on 28.02.2026 and Annexure-D is the order dated 08.04.2026 passed by the learned Special Judge, Dima Hasao, in NDPS Case No. 04/2026, which reflects that charge sheet has been laid against the accused persons in connection with this case. Thereafter, on the next date i.e. on 22.04.2026, the co-accused were produced and the next date was fixed on 06.05.2026 for production/copy.The order dated 23.06.2026 in the NDPS Case No. 04/2026 clearly reflects that CR was put up on the strength of a petition filed by the learned PP, Dima Hasao, that charge sheet has been filed against 5 (Five) accused persons including the petitioner. The learned PP also submitted that inadvertently in the order dated 08.04.2026, the name of only 3 (Three) co- accused were reflected, whereas the name of accused Babul Islam and the petitioner Faijur Rahman was not recorded. On the same day, after hearing the learned PP, the Trial Court issued NBWA against the petitioner. 3. Heard learned Additional Public Prosecutor Mr. R.J. Baruah for the respondent State, who has admitted that NBWA was issued on the same day against the petitioner when the Public Prosecutor apprised the Court about the charge sheet against the petitioner. 4. I have considered the submissions at the bar with circumspection. 5. Learned counsel for the petitioner has relied on the decision of this Court Page No.# 3/6 in Kabir Ahmed (M.D.)-Vs.-State of Assam reported in 2010 0 Supreme (Gau) 661 wherein it has been held that : “3. On the basis of an FIR lodged by one Tomir Ahmed for alleged commission of offence by the petitioner under Section 366 (A)/368 IPC a complaint case being CR No. 1956/09 was filed in the Court of learned CJM, Golaghat and the same was forwarded to the O/C Dergaon for necessary investigation and registration of the case as Dergaon PS case. Accordingly, the case was registered as Dergaon PS Case No. 76/09 under Section 366(A) IPC and after completion of the enquiry the I.O. having found prima facie case, submitted the charge sheet against the Petitioner under Section 366A IPC showing the Petitioner as absconder. The charge sheet was drawn on 31.5.10 being charge sheet No. 34/10 and the same was transferred to the learned Addl. CJM for necessary disposal on 12.7.10 when on the first day, the learned Addl. CJM passed an order directing to issue NBWA against the Petitioner. In the aforesaid order it is not disclosed that the Petitioner was absconder. Without following the procedure prescribed under Section 82/83 Code of Criminal Procedure and in compliance of the provision of law as laid down in the case of Nazrul Islam Vs. State of Assam & Ors. reported in 2008 (1) GLT 979, it appears that the learned CJM hold to issue NBWA against the Petitioner as the Petitioner was described as absconder by the I.O. It is needless to reiterate that a police officer has no authority under the law to declare a person absconder. It is the judicial Court who can only pass an order as absconder but that does not reflect in the order. On 6.8.10 again such direction to issue NBWA was issued to the Petitioner fixing the case on 31.8.10. 4. The learned counsel for the Petitioner submits that the Petitioner shall appear before the learned Addl. CJM, Golaghat in connection with the aforesaid case within a period often days from today. 5. After hearing the learned counsel for the Petitioner as well as the learned Addl. P.P., Assam, Mr. Munir and in view of the aforesaid discussion, this criminal petition stands disposed of with the direction that the Petitioner shall cause his appearance before the learned trial Court in connection with the aforesaid case within a period often days from today as assured and apply for regular bail and in the event of such appearance and filing an applicant for bail, the learned Addl. CJM, Golaghat shall consider the same and pass appropriate order the law and facts.” Page No.# 4/6 6. In this instant case, the petitioner has not been declared as absconder by the police. As the petitioner was not available at the time of the investigation, he was shown as absconder in the charge sheet. It is true that the order dated 23.06.2026 reflects that the petitioner was an absconder and immediately, NBWA was issued against the petitioner without recording any reasons. 6. It has been held by the Hon’ble Supreme Court in Inder Mohan Goswami and Another Versus State of Uttaranchal and Others reported in (2007) 12 SCC 1 wherein it has been held that :- “53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: • it is reasonable to believe that the person will not voluntarily appear in court; or • the police authorities are unable to find the person to serve him with a summon; or • it is considered that the person could harm someone if not placed into custody immediately. 54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. 55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be Page No.# 5/6 avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.” 7. Reverting back to this case, I have considered the submissions that the petitioner had filed for zimma of the vehicle bearing registration No. AS-01-GE- 5545 and vide order dated 17.03.2026, the petitioner was given zimma of the aforementioned seized vehicle. It is thus stressed by the learned counsel for the petitioner that the petitioner was all along available during the investigation and it was not true that he has absconding. 8. Although at this stage, it cannot be ascertained whether the petitioner was evading arrest, I find force in the submission of the learned counsel for the petitioner that without recording reasons, NBWA was issued against the petitioner on the same day when it was brought to the notice of the Court that the petitioner was shown as absconder in the charge sheet. At this juncture, this Court deems it appropriate to set aside the impugned order dated 23.06.2026 passed by the learned Special Judge, Dima Hasao, in NDPS Case No. 4/2026. 9. The petitioner is directed to appear before the learned Trial Court within a period of 20 (Twenty) days and cooperate with the trial and apply for bail. In the event of such appearance and filing an application for bail, the Trial Court may consider the same and pass orders in accordance with law. Page No.# 6/6 10. In terms of the above observation, this petition stands disposed of. JUDGE Comparing Assistant