Gauhati High Court
Kiran Singha vs The State Of Assam on 13 May, 2026
Page No.# 1/9
GAHC010067032026
2026:GAU-AS:6598
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./929/2026
KIRAN SINGHA
S/O RANJAN SINGHA,
R/O VILL KAMESWAR, PS DHARMANAGAR, DIST NORTH TRIPURA,
(TRIPURA)
VERSUS
THE STATE OF ASSAM
TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR SARFRAZ NAWAZ, A MISHRA,MR. A TARAFDAR,MD A
RAHMAN,SAMIM RAHMAN
Advocate for the Respondent : PP, ASSAM,
:: BEFORE ::
HON'BLE MR. JUSTICE PRANJAL DAS
ORDER
13.05.2026
1. Heard Mr. S. Nawaz, learned counsel appearing for the accused petitioner as Page No.# 2/9 well as Mr. K. K. Parasar, learned Addl. P.P., Assam appearing for the State respondent.
2. This petition under Section 483 of the BNSS, 2023 has been filed by the accused-petitioner, namely, Kiran Singha, praying for grant of bail in connection with Special NDPS Case No.79/2025 under Sections 20(b)(ii)(c)/29 of NDPS Act (arising out of Lumding P.S. Case No.109/2025), pending before the learned Special Judge, Hojai. The petitioner was stated to have been formally arrested on 24.08.2025.
3. It is submitted at the Bar that charges have already been framed under Section 20(b)(ii)
(c)/29 of the NDPS Act and the case proceeded to the stage of evidence.
4. The scanned record has been received.
5. The gist of the allegations is about recovery of the 23 kg of suspected ganja from the possession of the petitioner and another.
6. Mr. Nawaz, learned counsel for the petitioner raises primarily two contentions. Firstly, that, though the petitioner was shown to have been formally arrested on 24/08/2025 at 1 P.M., but as reflected in the FIR itself he was detained by the Law Enforcement Authority on 24/08/2025 at 1:30 AM and as per the forwarding report, the remand order was passed by the Magistrate on 25.08.2025 - thereby, his production before the learned remand Magistrate has exceeded the stipulated 24 hours and hence, there is an infirmity in his arrest and his continued detention is untenable.
7. The second contention raised by the learned counsel for the petitioner is that while notice under 47 BNSS has been provided, but notice under the 48 BNSS was stated to have been sent by WT message but there is no material about its receipt by the family member of the petitioner and therefore, there is no compliance with Section 48 BNSS, constituting another infirmity in the arrest, thereby making his further detention untenable. In support of his contentions the learned counsel for the petitioner relied upon the following two cases:
(i) Directorate of Enforcement vs Subhash Sharma reported in 2025 SCC Online SC 240.
(ii) State of Haryana and others vs Dinesh Kumar reported in (2008) 3 SCC 222.
8. The learned Additional Public Prosecutor on the basis of the scanned record submits that as per the materials perused by him, the IO had sent a notice under Section 48 electronically. It is also submitted that there is no infirmity in the arrest procedure.
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9. The learned Additional Public Prosecutor stated about the serious nature of the allegations and seizure of a large quantity of suspected drugs from the accused.
10. I have perused the relevant materials, considered the rival submissions and gone through the case laws.
11. As stated in the FIR pertaining to the incident, the accused persons were apprehended on 24.08.2025 at 1.30 a.m., though as per the arrest memo, they were formally arrested on 24.08.2025 at 1.00 P.M. The forwarding report is dated 24.08.2025, but though the I.O. has signed on the same date, i.e. 24-08-2025, but he has not mentioned the time at which the accused persons were produced before the Magistrate.
12. On the other hand, the remand order is dated 25.08.2025, passed by the learned Magistrate and in the said order, dated 25.08.2025, the learned Magistrate has stated about production of the accused persons in the case after their arrest. Again, the learned Magistrate has not mentioned any time at which they were produced before the learned Magistrate. It is the general practice seen that the Investigating Officer, while forwarding the arrested accused persons do not mention the time at which they are produced before the Magistrate and the learned Magistrates also usually do not mention the time of the date on which the accused persons are produced before the Magistrate. It is time to revisit those practices and incorporate more details into the same indicating the timings, as production beyond the stipulated period of 24 (twenty four) hours would vitiate the arrest. Such challenges are also coming before the Courts.
13. In the case of Directorate of Enforcement Vs. Subhash Sharma (2025) SCC OnLine SC 240, relied upon by the petitioner side, the arrest of the petitioner accused was held to be vitiated as he was detained at the IGI Airport Delhi on 05.03.2022 at 11.00 A.M., though formally arrested on 06.03.2022 at 1.15 A.M. and he was produced before the Court on 06.03.2022 at 3.00 P.M. Calculating the period of 24 (twenty four) hours from 11.00 A.M. on 05.03.2022, the production was held to be beyond 24 (twenty four) hours and therefore, the arrest and further detention vitiated. The relevant para nos. 6, 8 and 9 are reproduced here and below:-
"6. This argument cannot be accepted. Admittedly, the LOC was issued at the instance of the appellant-Directorate of Enforcement. By executing the LOC, the Bureau of Immigration detained the respondent at IGI Airport from 4th March 2022 on behalf of the Appellant. The Page No.# 4/9 finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 1.15 hours on 6th March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6th March, 2024. The perusal of the arrest order(Annexure p-1) shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5th March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. Thus, the continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22(2) of the Constitution, even his fundamental right to liberty guaranteed under Article 21 has been violated.
8. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution.
9. Therefore, when arrest is illegal or is vitiated, bail cannot be denied on the grounds of non- fulfillment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA."
14. Similarly, in the earlier case of State of Haryana and Ors. Vs. Dinesh Kumar (2008) 3 SCC 222, the Court dealt with a similar issue and in paragraph-23, approved the principle laid down in a yet earlier decision of Niranjan Singh Vs Prabhakar Rajaram Kharote, (1980) 2 SCC 559. The relevant para-7 of Niranjan Singh (Supra) may be reproduced here and below:-
"7. When is a person in custody, within the meaning of S. 439 Cr. P. C. ? When he is in duress Page No.# 5/9 either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the courts jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of S. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose."
15. In the case of Subhash Sharma (supra), though the Hon'ble Apex Court, in my view, did not lay down in so many words the principle that the time of 24 hours under Article 22 of the Constitution has to be calculated from the time of detention, even if formal arrest is later
- however, in effect, such a principle was applied to the facts of that case in holding the arrest to be vitiated.
16. In Niranjan Singh (supra), the Hon'ble Apex Court has explained that ultimately the meaning of the term 'custody' is that the law has taken control of the person and that interpreting the term custody in any other manner would be what the Hon'ble Apex Court held as - "unfair evasions of the straightforwardness of the law."
17. In the instant case, as already discussed, neither the I/O in the forwarding report nor the remand Magistrate in the remand order has stated the specific time of forwarding and production respectively.
18. As already discussed, non-mentioning of time is perhaps the usual practice. However, in terms of the principles laid down by the Hon'ble Apex Court mentioned above, the instant case reveals a situation where the forwarding report is dated 24.08.2025 but the remand order stating about production is dated 25.08.2025. Therefore, I am of the considered view Page No.# 6/9 that an interpretation beneficial to the accused has to be given and the production has to be taken as having been done on 25.08.2025 during the Court hours and if that be so, then the same would be beyond the period of 24 (twenty four) hours, starting from 1.30 A.M. on 24.08.2025.
19. Before proceeding further, Article 22 may be reproduced herein below:-
"22. Protection against arrest and detention in certain cases:- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply--
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
**(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless--
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe-- *(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); **(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under ***[sub-clause (a) of clause (4)]."
20. The provision pertaining to production within 24 (twenty four) hours, excluding the Page No.# 7/9 journey time, pertains to the transition from executive/police custody to judicially supervised custody. If the Police or law Enforcing Authorities are allowed to detain a person without arrest for any significant time before formally arresting the person - and producing the accused before Magistrate within the said 24 (twenty four) hours from the date of formal arrest - then the same would be violative of the spirit underlying Article 22. Of course, if the factual situation indicates no formal apprehension prior to arrest, then there is no difficulty in calculating the period from the date of formal arrest. However, if there are materials to indicate a formal apprehension/custody prior to formal arrest, then spirit of Article 22 would necessitate calculating the period of 24 (twenty four) hours from the date and time of such formal apprehension/custody. The same would also follow from the principles laid down by the Hon'ble Apex Court in Subhash Sharma (supra) and Niranjan Singh (supra).
21. The factual matrix of this case also indicates, as already stated above, that the FIR indicated formal apprehension/custody of the accused persons prior to their formal arrest subsequently. Of course, the law as it stands today, does not encourage Investigative Agencies to arrest people recklessly and without doing sufficient homework. If that be so, the said process takes its own time. Therefore, the Police and law Enforcing Authorities also have to be alive to the challenges of this situation and meet the standards required by law. For example, if the accused has to be produced at a place located at a distance, then transit remand needs to be taken promptly before the nearest Magistrate, as reaching the final destination for remand could lead to expiry of the period of 24 (twenty four) hours.
22. In terms of the principles of law discussed above, in the instant case, the production being interpreted to be beyond the period of 24 (twenty four) hours would have the effect of vitiating the arrest and making further detention untenable and the requirement of granting bail on the said ground itself.
23. Nevertheless, the aspect of notice under 48 B.N.S.S. also needs to be discussed. From the scanned record this Court is unable to locate the notice under 48 B.N.S.S. It is stated to have been delivered electronically. The learned Magistrate in the remand order dated 25.08.2025 has stated about the families of the accused being aware of their arrest.
24. Though the observation of the Court has its own significance and sanctity;
Page No.# 8/9 nevertheless, the Investigating Officer also has to do a little more homework and take the process of sending the notice electronically to its logical conclusion by taking a receipt of the same from the concerned police station and in the event that the notice is refused by the family members, an endorsement regarding the same also needs to be made and made part of the case diary.
25. Thus, in the instant case, the arrest also suffers from infirmity owing to deficiency in compliance with the notice under Section 48 B.N.S.S. As far as the merits are concerned, there is no doubt about the contention of the prosecution that the matter pertains to commercial quantity of narcotic drugs having very serious adverse effects on society. The seizure witnesses have supported the seizure and there are sufficient incriminating materials against the accused on merits.
26. Therefore, in such cases, the Investigating Agency cannot afford to make these procedural technical mistakes.
27. It is very important that the technical steps are followed properly so that any genuinely required pre-trial detention of the accused in such serious matters is not defeated on technical grounds, to the detriment of society.
28. Accordingly, in the facts and circumstances and in view of the above discussion, I allow this bail petition and the accused person is allowed to go on bail of Rs.1,00,000/- lakh with two sureties of the like amount, one of whom has to be from the State of Assam - to the satisfaction of the learned Special Judge, Hojai. The following conditions are imposed:-
(i) The accused person shall not abscond and He shall be available for the remaining trial;
(ii) He shall not hamper or tamper with evidence; (iii) He shall not commit any illegal activities or offences, including any offences under the NDPS Act, (iv) He shall not in any manner intimidate, harass or try to influence any witnesses.
29. Violation of the bail conditions would lead to cancellation of the bail.
30. Before parting and in terms of the above discussion, this Court would like to issue the Page No.# 9/9 following directions for the concerned authorities on the Administrative and Judicial side.
(1) While forwarding the accused, the I/O shall mention not only the date but also the time when the accused is made available from the side of the police for production before the Magistrate, for the purpose of compliance with Article 22(2) of the Constitution.
(2) The learned remand Magistrate, while remanding the accused, shall also mention, apart from the date of remand, the time at which the accused persons are received for production after arrest, in keeping with the requirement under Section Article 22(2) of the Constitution.
(3) If the I/O feels that production before the jurisdictional Magistrate could lead to lapse of the 24 (twenty four) hours in any manner, he shall explore the possibility of taking a transit remand from the nearest Magistrate for the purpose of complying with the time limit stipulated in Article 22(2) of Constitution.
(4) Whenever the I/O is compelled by circumstances to send the notice under 48 BNSS by electronic mode, service of the same upon the family members shall be taken from the concerned police station and in the event of refusal of notice by family members, an endorsement of the same shall also be taken. These aspects should find their due place in the case diary.
31. A copy of this order may be placed before the Learned Registrar (Judicial) of this Court on the Administrative side for circulation to the concerned learned police/Investigative Authorities and also the concerned learned Judicial Authorities.
32. The bail petition stands allowed and disposed of.
JUDGE Comparing Assistant