Gauhati High Court
Page No.# 1/13 vs The State Of Assam on 6 November, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010213102025
2025:GAU-AS:15015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3078/2025
SHRI L DANIEL KITHAREE ALIAS DANIEL KITHAREE
S/O.- P. LOLI, RESIDENT OF- SHAJOUBA VILLAGE, P.O AND P.S. TADUBI,
DISTRICT- SENAPATI, MANIPUR, PIN NO.- 795104.
VERSUS
THE STATE OF ASSAM
REP. BY THE PP,ASSAM
Advocate for the Petitioner : MR. N K MURRY, MS N NEWME,S DEB,MS S.DAS,MS P
TOKBIPI
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 06.11.2025 Heard Mr. N.K. Murrey, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Addl. P.P. for the State.
2) The petitioner, who had been arrested on 26.10.2022, in connection with NDPS Case No. 18/2023, arising out of Dillai P.S. Case No. Page No.# 2/13 37/2022, under Section 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"), has prayed for bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "BNSS").
3) The learned counsel for the petitioner has submitted that the new ground for bail is that while arresting the petitioner, the grounds of arrest was not furnished to him and therefore, for non-compliance of the mandatory requirement of Article 21(2) and Article 22 of the Constitution of India, the arrest of the petitioner is illegal and therefore, he cannot be kept in custody even for a minute. In support of his submissions, the following cases has been cited:-
i. Basheshar Nath v. Commissioner of Income Tax Delhi & Rajasthan & Anr., 1959 Supp (1) SCR 528: AIR 1959 SC 149: (1959) 35 ITR 190 ii. Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., (1985) . SCC 545 iii. National Insurance Company Ltd. v. Pranay Sethi & Ors, (2017) 16 SCC 680 iv. National Investigation Agency v. Thangminlen Mate @ Lenin Mate, order dated 21.08.2025, passed in Crl.A. No. 234/2025 v. Manak Ram & Anr. v. The Union of India, order dated 08.09.2025, passed in Bail Appln. No. 2277/2025 vi. Firoj Alom & Anr. v. Md. Mujibur Rahman, order dated 17.09.2025, passed in Bail Appln. No. 2813/2025 vii. State of Madhya Pradesh v. Shobhram & Ors., 1966 Supp SCR 239: AIR 1966 SC 1910: 1966 Crl. LJ 1521 viii. Pankaj Bansal v. Union of India & Ors., (2024) 7 SCC 576 ix. Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254 x. Vihaan Kumar v. State of Haryana & Anr., 2025 SCC OnLine SC 269 xi. Radhika Agarwal v. Union of India & Ors., (2025) 6 SCC 545 xii. Ahmed Mansoor & Ors. v. The State, Represented by Assistant Commissioner of Police & Anr., order dated 14.10.2025, passed in Criminal Appeal No. 4505/2025 [SLP (Crl.) No.198/2025] xiii. Sarju Chetry & Anr. v. The State of Assam, order dated 10.04.2025, Page No.# 3/13 passed in Bail Appln. No. 3987/2023 xiv. Neizosetuo Kire v. The State of Nagaland & Anr., judgment and order dated 11.04.2025, passed in Bail Appln. No. 2/2025 xv. Azibur Rahman @ Aziz @ Ajibur v. The State of Assam, judgment dated
02.05.2025, passed in Bail Appln. No. 624/2025 xvi. Mandeep Kaur v. State of Nagaland, order dated 19.09.2025, passed in Bail Appln. No. 17/2025 xvii. Lallubhai Jogibhai Patel v. Union of India & Ors., (1981) 2 SCC 427 xviii. State of M.P. v. Kajad, (2001) 7 SCC 673 xix. Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr., (2004) 7 SCC 528 xx. Vipin Kumar v. State of UP, order dated 13.02.2025, Criminal Appeal No. 726/2025 (Arising out of SLP(Crl.) No. 17918/2024) xxi. Nazir Ahmad v. The King Emperor, Indian Appeals (on appeal from the High Court of Lahore) xxii. State of Uttar Pradesh v. Singhara Singh & Ors., (1964) 4 SCR 485: AIR 1964 SC 358 xxiii. Hukam Chand Shyam Lal v. Union of India & Ors, (1976) 2 SCC 128 xxiv. J.N. Ganatra v. Morvi Municipilaty, Morvi, (1996) 9 SCC 495 xxv. Ram Phal Kundu v. Kamal Sharma, (2004) 2 SCC 759 .
4) In order to consider this application, the scanned copy of the records of the learned Trial Court has been called for and received.
5) The records reveal that in the instant case during a checking, 1263.24 gram heroin was recovered, out of which 573.11 gm. suspected heroin was recovered from Maruti Car bearing registration no. AS-01-AE-9207 and 690.13 gm. heroin was recovered from Innova vehicle bearing registration no. NL-01-CA-0194. The seized article had tested positive for heroin. The petitioner was found to be in conscious possession of the contraband heroin. As per the materials available on the record, the street value of the seized narcotic is about Rs.5.00 Crore.
6) The records further reveal that the defence statement under Section 313 CrPC has been recorded and the prayed of the defence to examine Page No.# 4/13 witness was allowed by order dated 18.08.2025. Accordingly, the case was last fixed on 16.10.2025, for production of defence witness.
7) As stated hereinbefore, the case of the prosecution is that the contraband narcotic and psychotropic substance i.e. heroin was seized from the vehicle which was being driven by the petitioner. Therefore, the learned Addl. P.P. has been able to prima facie satisfy the Court that there are sufficient evidence materials in the charge-sheet to suggest that the petitioner is suspected to be involved in the transportation of commercial quantity of heroin into the State. Therefore, the Court is unable to hold that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail, which is an essential requirement of Section 37 of the NDPS Act.
8) Except for the plea that the grounds of arrest was not served on the petitioner, the rest of the submissions made by the learned counsel for the petitioner is mostly covered by the order dated 28.11.2024, passed by this Court in B.A. 2438/2024, which was the earlier order of this Court while rejecting the bail application made by the petitioner. Therefore, the discussions made therein are not repeated in this order.
9) We take note of the observations of the Supreme Court of India in the case of Hira Singh & Anr. (supra), decided by a 3-Judge Bench, which is extracted below:-
8.5. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national Page No.# 5/13 and international level, many deficiencies in the existing laws have come to notice.
Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral substance(s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted .
10) Thus, the Court is of the considered opinion that offence of dealing with, transporting of drugs and narcotic substances and drug peddling, which has the tendency to adversely affect the society and destroy the future of the youths must also be treated to be a separate class of offence.
11) In the case of P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, a 7- Judge Bench of the Supreme Court of India had held as follows:-
29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) as modified in Common Cause (II) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field.
Page No.# 6/13 (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions.
(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time- limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.
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12) In connection with the submissions made by the learned counsel for the petitioner that co-accused has been granted bail, we may also refer to the decision of the Supreme Court of India in the case of Tarun Kumar v. Assistant Director Directorate of Enforcement, (2023) 4 Crimes (SC) 442: (2023) 8 Supreme 212, which is extracted below:-
"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.
19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or Page No.# 8/13 advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision.
20. It is also difficult to countenance the submission of learned Counsel Mr. Luthra that the investigation qua the appellant is complete and the trial of the cases likely to take long time. According to him the appellant ought not to be incarcerated indefinitely merely because the investigation is kept open with regard to the other accused. In this regard, it may be noted that the appellant has not been able to overcome the threshold stipulations contemplated in Section 45 namely he has failed to prima facie prove that he is not guilty of the alleged offence and is not likely to commit any offence while on bail. It cannot be gainsaid that the burden of proof lies on the accused for the purpose of the condition set out in the Section 45 that he is not guilty of such offence. Of course, such discharge of burden could be on the probabilities, nonetheless in the instant case there being sufficient material on record adduced by the respondent showing the thick involvement of the appellant in the alleged offence of money laundering under Section 3 of the said Act, the Court is not inclined to grant bail to the appellant.
21. The apprehension of the learned counsel for the appellant that the trial is likely to take long time and the appellant would be incarcerated for indefinite period, is also not well founded in view of the observations made by this Court in case of Vijay Madanlal (supra). On the application of Section 436A of the Code of Criminal Procedure, 1973, it has been categorically held therein that: -
419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a given case, the detention can be continued by the Court even longer than one-half of the period, for which, reasons are to be recorded by it in writing and also by imposing such terms and conditions so as to ensure that after release, the accused makes himself/herself available for expeditious completion of the trial."
13) Thus, in para 19 of the case of Tarun Kumar (supra), the Supreme Page No.# 9/13 Court of India has held that Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision".
14) Thus, the Court is of the considered opinion that although the petitioner has spent about 1107 days [3 (three) years, 11 (eleven) days] in custody, but as per the ratio of the case of Satender Kumar Antil (supra), the petitioner has not become entitled to bail.
15) Therefore, the issue of non-service of grounds of arrest to the petitioner is taken up now.
16) The contents of the notice under Section 50 Cr.P.C., served to the petitioner is as follows:-
"NOTICE To, Shri/Smti/Md./Musstt : Daniel Kitharee Age : 33 yrs.
S/O, D/O, W/O. : P. Loli
Village : Shajouba Village.
Police Station : Tadubi
District : Senapati, Manipur.
Ref: Dillai P.S. Case No. 37/2022, U/S 21(C)/29 NDPS Act.
You are hereby information that you are under arrest in connection with above reference case is non-bailable to police. So, you are forwarded to the hon'ble Court. You may submit petition before Hon'ble Court for your bail.
Signature of arrestee:
sd/- (Daniel Kitharee) Signature of Arresting Officer S.I.(UB) (illegible) Page No.# 10/13 I/C Lahorijan P.P. Dt. 26/10/2022"
17) Thus, the ground that notice under section 50 of the CrPC was not served to the petitioner is a false plea, which the petitioner has taken in this bail application, knowing it to be utterly false. The false statement has been deliberately made to mislead the Court and to get bail by hook or by crook.
18) The petitioner has signed the notice under section 50 CrPC in English. Therefore, it cannot be said that the said notice was not served to the petitioner in a language he knows.
19) As per the TCR, the petitioner was caught red-handed on 26.10.2022 along with 690.13 gm. heroin kept concealed in his car. As per the scanned copy of the case diary available in the TCR, the service of notice under Section 50 Cr.P.C. upon the petitioner is duly recorded in the case diary by Entry No. 7 dated 27.07.2022, which was made at 11:30 PM. Moreover, as per the said entry, the relatives of the petitioner were also informed about the arrest by sending W.T. message. Therefore, the Court is unable to accept that the petitioner was not aware why he was arrested and thereafter, in due course produced before the jurisdictional Magistrate, who had remanded him to police custody and in due course, remanded him to judicial custody. Therefore, none of the cases cited by the learned counsel for the petitioner touching upon non- service of grounds of arrest to the petitioner or non-compliance of the provisions of Section 50 CrPC (equivalent to Section 47 of the BNSS), Article 22(1) of the Constitution of India and violation of Article 21 of the Constitution of India have no relevance under the facts of this case and thus, not discussed to avoid burdening this order with discussions on case law, which is not relevant Page No.# 11/13 under the distinguishable facts of this case.
20) Another disturbing set of facts, which has come to light on perusal of the voluminous scanned copy of the TCR, is as follows:-
a. The TCR reveals that satisfied with the grounds of arrest, remanded the petitioner to judicial custody vide order dated 30.10.2022.
b. In this bail application, the petitioner projects that his bail application was moved before the learned Trial Court, being Bail Application Nos. 56/2023 dated 06.01.2023, 249/2023 dated 30.01.2023, and 124/2025 dated 09.05.2025, which were all rejected.
c. The petitioner had also moved this Court for bail, which was rejected by order dated 28.11.2024, passed in B.A. 2438/2024.
d. Thereafter, the petitioner had prayed for bail before the Supreme Court of India, but by order dated 08.05.2025, passed in SLP (Criminal) Diary No. 21455/2025, was not inclined to grant bail, however, the matter was disposed of with an observation that the Trial Court shall conclude the trial within six months, otherwise, the petitioner would be at liberty to renew the prayer for bail before the High Court.
e. The order dated 19.07.2025, passed by the learned Trial Court in Bail Application No. 243/2025, reveals that the case was otherwise fixed for recording of statement of the accused under Section 313 CrPC. The said order also reveals that the order dated 08.05.2025, passed by the Supreme Court of India in SLP (Criminal) Diary No. 21455/2025 was placed before the learned Trial Court only on 19.07.2025, i.e. after two months.
Page No.# 12/13 f. The petitioner has not brought anything on record to show that the said order dated 08.05.2025, passed by the Supreme Court of India in SLP (Criminal) Diary No. 21455/2025, was placed before the learned Trial Court within a reasonable time of passing of the said order so that the Trial Court could have made an attempt to expedite and conclude the trial in terms of the said order.
g. The TCR also reveal that the learned Trial Court had directed the petitioner to produce a copy of the SLP filed before the Supreme Court of India, but as per order dated 28.08.2025, the same was produced only on 26.08.2025.
h. Therefore, it appears from the scanned copy of the TCR that willfully and deliberately, the petitioner did not bring the order dated 08.05.2025, passed by the Supreme Court of India in SLP (Criminal) Diary No. 21455/2025 to the notice of the learned Trial Court.
i. Thus, the only presumption that can be drawn that the order of the Supreme Court of India was concealed from the learned Trial Court for more than two months so that if the trial is not concluded within a period of six months from 08.05.2025, the date of the order, then the petitioner can be enlarged on bail.
j. The concealment of the order of the Supreme Court of India, as done in this case by the petitioner, is nothing but an attempt to project before this Court that the Trial Court is at fault by not complying with the directions of the Supreme Court of India contained in the order dated 08.05.2025.
k. The concealment of this nature would not have come to light had the Page No.# 13/13 Court not perused the voluminous TCR meticulously. Therefore, the concealment of this nature amounts to committing fraud both upon the learned Trial Court and also upon this Court.
21) Thus, the Court is of the considered opinion that when the foundation of this bail application is built on fraud and concealment of the order passed by the highest Court of the Country, granting of bail to the petitioner would amount to give him a premium for fraud and concealment.
22) On the other hand, the prosecution case is concluded and the case is fixed for defence evidence, any delay in completion of defence evidence would be on account of the petitioner alone notwithstanding which person(s) are being intended to be called and examined as witnesses.
23) Therefore, in light of the discussions above, the petitioner is not found entitled to be enlarged on bail at this stage.
24) Accordingly, this application for bail is dismissed.
JUDGE Comparing Assistant