Gauhati High Court
Page No.# 1/7 vs The Union Of India on 20 May, 2025
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/7
GAHC010077562025
2025:GAU-AS:6312
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1153/2025
RASHID HOQUE
S/O KAPIR UDDIN MIAH
R/O CHOTO FALIMARI
P.S. DINHATA
DIST. COOCHBEHAR, WEST BENGAL.
VERSUS
THE UNION OF INDIA
TO BE REP. BY THE SC, NCB, ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. I U CHOWDHURY,M ALAMGEER
Advocate for the Respondent : SC, NCB,
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
20-05-2025 Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. I. U. Choudhury, learned counsel for the petitioner and Mr. S. C. Keyal, learned Standing Counsel, Narcotics Control Bureau (NCB), for the sole respondent.
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2. The petitioner, namely, Rashid Hoque, son of Kapir Uddin Miah, resident of Village-Chhoto Falimari, Police Station-Dinhata, District-Coochbehar, West Bengal has filed this application under Section 483 BNSS, 2023 on 09.03.2025 praying for his bail in NCB Guwahati Case No. 02/2025, registered under Sections 8(c)/22(C)/29 of the NDPS Act, 1985, in which, he was arrested on 30.01.2025 and is in custody since then.
3. The petitioner contended that while he was arrested on 30.01.2025 the Notice issued to him under Section 47 BNSS by the authorities of NCB in said NCB Guwahati Case No. 02/2025 was not in accordance with law and also not in terms of the law laid down by the Hon'ble Supreme Court in the cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana & Anr., reported in (2025) SCC OnLine SC 269.
4. Placing the provisions of Section 36 of the BNSS, Mr. Choudhury, learned Senior Counsel submitted that even the arrest memo of the petitioner served on him on 30.01.2025 was not in accordance with the said provision and his arrest was in absence of any witness.
5. In this regard, Mr. Choudhury had shown the notice under Section 47 BNSS to the petitioner on 30.01.2025 annexed to this petition as Annexure-V.
6. Mr. Choudhury, learned Senior Counsel for the petitioner has also placed the decision of the Hon'ble Apex Court in the cases of Prabir Purkayastha (supra) and Vihaan Kumar (supra).
7. Respondent NCB filed its objection with regard to the release of the petitioner on bail stating that the NCB personnel in presence of independent witnesses on 30.01.2025 early morning around 06:40 hrs., on the basis of specific information recovered 1.505 Kgs of Methamphetamine from the conscious possession of the petitioner, i.e., a black colour UPS from the Gauhati Railway Station while he was travelling in 12514 Secunderabad Superfast Express.
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8. Accordingly, those 1.505 Kgs of Methamphetamine was seized from the possession of the petitioner under the NDPS Act. Subsequently, the petitioner was apprehended on 30.01.2025 itself and was brought to the office of the NCB Guwahati and his voluntary statement under Section 67 (c) of the NDPS Act, 1985 was recorded on 30.01.2025 before the Investigating Officer of said NCB Guwahati Case No. 02/2025 in which, the petitioner voluntarily confessed of consciously trafficking Methamphetamine Tablets that were seized in the case.
9. Subsequently, the petitioner was arrested in said NCB Guwahati Case No. 02/2025 on 30.01.2025 under Sections 8(c)/22(C)/29 of the NDPS Act, 1985 serving notice under Section 47 BNSS to him in the office of the NCB in its Guwahati Zonal Unit, which the petitioner duly acknowledged.
10. Placing the case diary, Mr. Keyal, learned Standing Counsel, NCB submitted that at the time of arresting the petitioner in said NCB Guwahati Case No. 02/2025 on 30.01.2025 both his mother and father were informed in their respective mobile numbers pertaining to arrest of their son, i.e., the petitioner in the said NCB Case, where, the mobile numbers of his parents were provided by the petitioner himself and that the petitioner on 30.01.2025 itself acknowledged that during the time of his arrest his parents were informed individually in their respective mobile numbers.
11. Mr. Keyal by placing the said arrest memo submitted that the provisions of Sections 36 as well as 48 have been duly complied with.
12. With regard to the compliance of the provisions of Section 47 BNSS, Mr. Keyal, learned Standing Counsel, NCB from the case diary as well as Annexure-V to the petition placed that the petitioner on 30.01.2025 at the time of his arrest was duly informed about the relevant NCB Case Number, the relevant provisions of NDPS Act, 1985 under which he has been arrested and also informing him the grounds that since he violated the provisions of the NDPS Act in connection with the seizure of 1.505 Kgs of Methamphetamine Tablets from him, where, the case/relevant provisions are non Page No.# 4/7 bailable, he will be produced before the Hon'ble jurisdictional Court and as such, he may submit petition before the Hon'ble Court for his bail.
13. The petitioner duly acknowledge the receipt of said Notice under Section 47 BNSS on 30.01.2025 that was issued by the Sub Inspector, NCB, Guwahati Zonal Unit, the concerned Investigating Officer of the case on 30.01.2025.
14. Mr. Keyal, learned Standing Counsel, NCB also submitted that the petitioner was produced before the Court of learned Judicial Magistrate, First Class, Kamrup (M) at Guwahati in said NCB Guwahati Case No. 02/2025 on 31.01.2025 for his first production, after his arrest on 30.01.2025. Mr. Keyal also submitted that while the petitioner was produced before the said Magistrate on 31.01.2025, his father was present in the Court and intimation of arrest of the accused petitioner, Rashid Hoque letter dated 31.01.2025 was served by hand to the petitioner's father namely Kapir Uddin Miah on 31.01.2025 in the Court premises itself obtaining his acknowledgement on it.
15. Mr. Keyal, learned counsel therefore submitted that the NCB thereby complied with the provisions of Sections 47 and 48 of the BNSS, 2023 and also the provisions of Article 22(1) of the Constitution of India.
16. Mr. Keyal, learned Standing Counsel, NCB relying on the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Ajay Kumar Singh @ Pappu decided on 28.03.2023 in SLP (Crl.) No. 2351/2023, wherein, their Lordships observed that - This apart, it is noticed that the High Court, in passing the impugned order of bail, had lost sight of Section 37 of the NDPS Act, 1985, which, inter alia, provided that no person accused of an offence involving commercial quantity shall be released on bail unless the twin conditions laid down therein are satisfied, namely, (i) the Public Prosecutor has been given an opportunity to oppose the bail application and (ii) The Court is satisfied that there are reasonable grounds for believing that he (the accused) is not guilty of such an offence and that he (the accused) is not likely to commit any Page No.# 5/7 such offence while on bail.
17. Heard the learned counsels for the parties and also considered the decisions of the Hon'ble Supreme Court in the cases of Prabir Purkayastha (supra) and Vihaan Kumar (supra), placed on behalf of the petitioner as well as the decision of the Hon'ble Apex Court in the case of Ajay Kumar Singh @ Pappu (supra).
18. Perused the Memorandum of Arrest served on the petitioner on 30.01.2025 where mother and father of the petitioner were also informed in their respective mobiles that were acknowledged by the petitioner on 30.01.2025, Annexure-II to this petition as well as the Notice under Section 47 BNSS issued to the petitioner on 30.01.2025 acknowledged by him on 30.01.2025, Annexure-V to this petition.
19. The Notice under Section 47 BNSS issued to the petitioner on 30.01.2025 in said NCB Guwahati Case No. 02/2025, annexed to this petition is as follows:-
"NOTICE UNDER SECTION 47 BNSS Rashid Hoque, aged about 22 years Son of Kapir Uddin Miah, Resident of Vilage Chhoto Falimari, PO-Gobrasara, Police Station-Dinhata, District-Coochbehar, West Bengal.
Case No.: NCB Guwahati Case No. 02/2025 Under Section: 08(c)/22(c)/29 of the NDPS Act, 1985 You are hereby informed that you are arrested in connection with the above reference case and violation of the NDPS Act in connection of seizure of 01.505 Kgs of Methamphetamine tablets. The case is non-bailable. So, you will be produced before the Hon'ble Jurisdictional Court. You may submit petition before the Hon'ble Court for your bail.
Signature of Investigating Officer Sd/- Aashiph Mustafa Sub-Inspector Narcotics Control Bureau Government of India, MHA Guwahati Zonal Unit, Guwahati. Signature of Arrestee Sd/- Rashid Hoque 30/01/2025."
20. From the Memorandum of Arrest served on the petitioner on 30.01.2025, Page No.# 6/7 Annexure-II and the Notice under Section 47 BNSS issued to the petitioner on 30.01.2025, Annexure-V, both issued by the authorities concerned of the NCB Guwahati on 30.01.2025, the Court is of the view that the petitioner has been duly informed about the reasons and the grounds of arrest of the petitioner in the said NCB Guwahati Case No. 02/2025 fulfilling the provisions of Article 22 of the Constitution and also the provisions of Sections 47 and 48 of the BNSS, which are also in compliance of the provisions of law laid down by the Hon'ble Supreme Court in the cases of Prabir Purkayastha (supra) and Vihaan Kumar (supra).
21. It is seen that the CFSL report dated 19.02.2025 pertaining to the seized substance from the conscious possession of the petitioner on 30.01.2025 gave positive test of containing Methamphetamine and Caffeine.
22. Prima facie it is seen that the 1.505 Kgs of Methamphetamine tablets were recovered from the conscious possession of the petitioner on 30.01.2025 from the UPS that he carried in a multi colour nylon bag while travelling in 12514 Secunderabad Superfast Express.
23. It is not the case of the petitioner that Methamphetamine tablets were not recovered from his possession on 30.01.2025. The petitioner is prima facie guilty of the offence of possessing Methamphetamine tablets with him while travelling in 12514 Secunderabad Superfast Express on 30.01.2025, which is an offence under the NDPS Act, 1985.
24. It is seen from the case diary that the investigation of said NCB Guwahati Case No. 02/2025 is still going on as the other accused persons of the case are yet to be apprehended and they are to be investigated upon.
25. Considering the materials in the case diary, the Court is of the view that the detention of the petitioner in custody since 30.01.2025 in said NCB Guwahati Case No. 02/2025 under Sections 8(c)/22(C)/29 of the NDPS Act, 1985 cannot be considered for his bail.
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26. Accordingly, this bail application of the petitioner, Rashid Hoque, son of Kapir Uddin Miah, in said NCB Guwahati Case No. 02/2025 under Sections 8(c)/22(C)/29 of the NDPS Act, 1985 stands rejected.
27. Return the case diary herewith.
JUDGE Comparing Assistant