Gauhati High Court
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GAHC010136632025
2025:GAU-AS:11546
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2058/2025
BIPUL KUMAR DAS ALIAS BIPUL DAS
C/O HARESWAR DAS
R/O GANAKPARA, JAJI GAON
P.S. PALASHB ARI
P.O. LOHARGHAT, PIN NO. 781120
DIST. KAMRUP, ASSAM
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE STANDING COUNSEL, CUSTOM.
Advocate for the Petitioner : MR. M RAHMAN, MD A RAHMAN,MOTIUR RAHMAN
Advocate for the Respondent : SC, CUSTOMS,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
26.08.2025
1. Heard Mr. M. Rahman, the learned counsel for the petitioner. Also heard Mr. S.C. Keyal, the learned Standing Counsel, Customs Department.
2. This application under Section 483 of the BNSS, 2023 has been filed by Page No.# 2/6 the petitioner, namely, Sri Bipul Kumar Das@Bipul Das, who has been detained behind the bars since 05.09.2024 (for more than 11 months) in connection with Customs Case No. 01/CL/NARC/AS/GAU/2024-25, dated 04.09.2024 under Sections 8(c)/20(b)(ii)(c)/29/60 of the NDPS Act, 1985.
3. The gist of accusation in this case is that on 04.09.2024, at about 11.45 hours, the Officer of Ant-Smuggling unit, Guwahati Customs Division, had received information through reliable sources, that one person namely, Bipul Kumar Das (the present petitioner) had stopped narcotic substances, believed to be ganja, at the backyard of his house. On received of the said information, a team of Customs Officials was called and they rushed to the house of the present petitioner.
4. During search operation, the petitioner was not there. However, his wife Mrs. Swapna Das was found there and, during search, 41 (forty-one) numbers of gunny bags were found, containing suspected ganja therein.
5. On weighing, the weight of the suspected contraband was found to be 511.175 kilograms.
6. The learned counsel for the petitioner has submitted that the petitioner has approached this Court, seeking bail, mainly on two counts, firstly, that the petitioner was not communicated about the grounds of his arrest at the time of his arrest and secondly, the contraband, which has been seized in this case, does not fall within the definition of ganja, as provided in Section 2(iii)(b) of the NDPS Act, 1985.
7. The learned counsel for the petitioner has submitted that, though at the time of his arrest, the petitioner was served with a notice under Section 47 of the BNSS, 2023, however, it did not contain any grounds of arrest, or basic facts which necessitated his arrest in this case. He submits that it only contained Page No.# 3/6 the case number, as well as the penal provisions involved in the case. He, therefore, submits that there has been violation of the constitutional mandate of communicating grounds of arrest at the time of his arrest and on that count, the petitioner is entitled to get bail in this case.
8. The learned counsel for the petitioner has cited a ruling of the Apex Court in the case of "Vihaan Kumar Vs. State of Haryana and Another"
reported in "(2025) 5 SCC 799."
9. The learned counsel for the petitioner has also submitted that the contraband seized in this case is not ganja as nowhere in the final complaint there is any mention that the seized contraband were the flowering or fruiting tops of the cannabis, rather what was seized is the green leafy materials only.
10. In support of his submissions, the petitioner has brought to the notice of this Court the Test Memo of the sample sent to the FSL, accompanying the final complaint filed by the NCB, wherein, the column No. (iii) where the description of drug has to be given, it has been mentioned "containing dried green leafy materials."
11. The learned counsel for the petitioner submits that the dried green leafy materials minus fruiting tops would only be regarded as bhang and not ganja and would be outside the scope of NDPS Act, 1985. In support of his submissions he has cited a ruling of the Apex Court in the case of " Hasubhai Kamabhai Thakor Vs. State of Gujarat" reported in "2023 Live Law (SC) 354". He has also cited another ruling of the High Court of Karnataka in "Roshan Kumar Mishra Vs. The State of Karnataka" (Criminal Petition No. 6611/2022) to emphasis his submission that bhang is quite different from ganja as defined under the NDPS Act, 1985. He therefore, submits that the petitioner is entitled to get bail in this case.
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12. On the other hand, Mr. S.C. Keyal, the learned Standing Counsel, Customs Department has vehemently opposed the grant of bail to the petitioner in this case on the ground that the quantity of contraband seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case. He submits that the notice under Section 47 of the BNSS, 2023 which was served on the petitioner on the date of his arrest, i.e. 05.09.2024, it has been clearly stated that the petitioner has been found involved in possession of 511.175 kilograms of suspected ganja which is a narcotics substance included in the NDPS Act, 1985. He submits that apart from the aforesaid information, the penal provisions and market value of the seized contraband was also mentioned in the notice under Section 47 of the BNSS, 2023.
13. He also submits that bare perusal of the said notice would reveal that as to why the petitioner was required to be arrested in this case. He submits that the grounds of arrest are very well stated in the said notice, therefore, he opposes the submission of the learned counsel for the petitioner that constitutional mandate has been violated in this case.
14. The learned Standing Counsel, Customs Department has also submitted that at the time of seizure of the contraband from the premises of the petitioner, the seized contraband was tested by utilizing the Drug Testing Kits and the result of the said test was shown to be positive for ganja. He further submits that even the forensic report of the samples sent to Forensic Laboratory clearly shows that samples are of ganja. He, therefore, submits that in view of categorical finding in the report of the forensic laboratory, there remains no doubt that the seized contraband is ganja and not bhang as submitted by the learned counsel for the petitioner.
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15. I have considered the submission made by the learned counsel for both sides and has gone through the records of this case.
16. As stated earlier, the petitioner has sought bail in this case mainly on two grounds, i.e. non-communication of grounds of arrest in writing as well as the fact that the contraband is not ganja. Let us examine both these grounds. On perusal of the notice under Section 47 of the BNSS, 2023 which was served on the petitioner on the date of his arrest by the arresting authority, it appears that it clearly indicates that the petitioner was found involved in possession of 511.175 kilograms of suspected ganja which was seized in this case. Apart from the aforesaid information, the total value of the seized contraband as well as penal provisions involved in this case were also mentioned in this case.
17. The requirement under Article 22(1) of the Constitution of India as well as under Section 47 of the BNSS, 2023 is that grounds of arrest should be communicated to an arrestee as soon as possible after his arrest.
18. In this case, this Court is of the considered opinion that this is not a case where no grounds of arrest were furnished to the petitioner or that the Section 47 notice which was served on him. Same is not devoid of any grounds of arrest. It, in the considered opinion of this Court, gives sufficient notice of the accusation made against the petitioner so as to inform him as to why he has been arrested.
19. This Court is, therefore, unable to agree with the contention of the learned counsel for the petitioner that no grounds of arrest were furnished to him.
20. Let us now discuss the second contention raised by the learned counsel for the petitioner. It is apparent from the final complaint lodged by the NCB that the contraband which was seized in this case was described as containing dried Page No.# 6/6 green leafy material believed to be ganja. It is also true that ganja has been defined in Section 2(iii)(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, as: "The flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves if not accompanied by the tops)."
21. In this case, it appears that the contraband which was seized was green leafy material. The question is now as to whether that green leafy material containing flowering or fruiting tops or not. If we peruse the forensic laboratory report, it gives a result of examination as positive for samples of ganja. Apart from that, it also mentions clearly that characteristics microscopic features of ganja were consistently observed in the samples.
22. In view of the report of the forensic laboratory indicating that characteristic microscopic features of ganja were observed consistently in the samples sent in this case, prima facie, it appears that the seized contraband is ganja and therefore, this Court is also unable to persuade itself with the submissions made by the learned counsel for the petitioner that the seized contraband does not fall within the definition of ganja and it is only bhang.
23. In view of the above discussions as well as considering the fact that the quantity of contraband seized in this case is of commercial quantity and the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case, the prayer for bail is rejected in this case.
JUDGE Comparing Assistant