Gauhati High Court
Mukles Ali Alias Muklesh Ali And Anr vs The State Of Assam on 21 July, 2026
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GAHC010129942026
2026:GAU-AS:9989
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1717/2026
MUKLES ALI ALIAS MUKLESH ALI AND ANR
S/O RAHMAT ALI, R/O VILL MOHKHULI,PS NAGAON, DIST NAGAON,
ASSAM
2: WAHIDUL HOQUE
S/O RAHMAT ALI
R/O VILL MOHKHULI
PS NAGAON
DIST NAGAON
ASSA
VERSUS
THE STATE OF ASSAM
TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR SARFRAZ NAWAZ, MD A RAHMAN,MR. SURAJIT DAS,R
MALI,MR A W AMAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
Date : 21.07.2026
Heard Mr. S. Nawaz, learned counsel appearing for the accused-applicants.
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Also heard Mr. K.K. Das, learned Addl. P.P., representing the State respondent.
3. This is an application filed under section 483 of BNSS 2023 praying for bail of
the accused applicants in connection with Nagaon P.S. Case No. 443/2026,
registered under sections 21(b)/22(c)/25/29 of the NDPS Act 1985.
4. The gists of the case are that on 09.06.2026, the informant, SI Bharadwaj
Chhetri lodged an FIR, alleging, inter alia that acting on a secret information, the
police team on 09.06.2026, at around 3 AM, entered the house of the accused
applicants and recovered 39 plastic containers containing suspected heroin
weighing 50.42 grams (with containers) and 5.37 grams (without containers) along
with 585 Yaba tablets weighing 57.05 grams from the collective possession of the
accused applicants and one Baharul Islam. After completing all formalities as to
search and seizure, the police took the seized contraband and the accused
applicants along with the aforesaid Baharul Islam to Itachali Town Outpost at 5:30
AM of 09.06.2026.
5. On receipt of the FIR, police registered Nagaon P.S. Case No. 443/2026 under
the aforementioned sections.
6. Mr. S Nawaz, the learned counsel appearing for the accused applicants
submits that the accused applicants were apprehended by the police and brought to
the outpost on 09.06.2026 at around 5:30 AM but the police showed them arrested
only on 09.06.2026 at 9:30 PM as is evident from the arrest memos. He submits
that during the intervening period, the accused applicants were kept detained in
the custody in the police lockup. He submits that on 10.06.2026, the Investigating
Officer forwarded the accused applicants before the learned CJM Nagaon and the
accused applicant no. 1 was remanded to police custody for 2 days and the accused
applicant no. 2 was remanded to judicial custody. He submits that the accused
applicants were produced before the learned Magistrate in the afternoon of
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10.06.2026 after the expiry of 24 hours which is in violation of Article 22(2) of the
Constitution of India. He submits that since the accused applicants were not
produced within a period of 24 hours of their arrest, the same is in violation of the
mandates of the Constitution of India and therefore, their continued detention is
illegal and untenable under the law. Accordingly, he prays that since the arrest of
the accused applicants is illegal, the accused applicants should be enlarged on bail
on that ground alone.
7. In support of his submission, Mr. Nawaz, the learned counsel has referred to
the case of Directorate of Enforcement vs. Subhash Sharma, reported in 2025
SCC OnLine SC 240 and the case of State of Haryana and others vs. Dinesh
Kumar, reported in (2008) 3 SCC 222.
8. Case Diary in the instant case has been received.
9. On the other hand Mr. Das, the learned Addl. P.P., submits that it can be clearly
seen from the arrest memo that the accused applicants were arrested on
09.06.2026 at 9:30 PM. He submits that after their arrest, they have been produced
before the concerned learned Chief Judicial Magistrate at 3 PM on 09.06.2026 and
therefore, there is no violation of Article 22(2) of the Constitution of India.
10. The case diary so produced has been perused by this Court. This Court has
also heard the submissions made by the counsel appearing for the respective
parties.
11. It is seen from the FIR dated 09.06.2026 that the police team arrived at
Itachali TOP at 5:30 AM on 09.06.2026 along with the seized items and
apprehended persons. It is also seen from the Case Diary that after completion of
seizure and recording of the statement of witnesses, the police produced the
accused applicants at 3:00 PM before the learned CJM, Nagaon on 10.06.2026.
Therefore, it is seen that though the arrest memo was issued to the accused
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applicants at 9:30 PM on 09.06.2026, the accused applicants were, in fact, arrested
at 5:30 AM on 09.06.2026. Therefore, it is seen that since the accused applicants
have been produced before the learned CJM, Nagaon on 10.06.2026 at 3:00 PM, the
same is after the expiry of the mandatory 24-hour period as mandated by Article
22(2) of the Constitution of India.
12. In the case of Directorate of Enforcement (supra), the arrest of the
petitioner-accused was held to be vitiated as he was detained at IGI Airport, Delhi
on 05.03.2022 at 11:00 AM, though formally arrested on 06.03.2022 at 1:15 AM,
and he was produced before the Court on 06.03.2022 at 3:00 PM. Calculating the
period of 24 hours from 11:00 AM on 05.03.2022, the production was held to be
beyond 24 hours, and therefore, the arrest and further detention vitiated. In this
connection, paragraph numbers 6, 8, and 9 being relevant are extracted herein
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 ofImmigration detained the respondent at IGI Airport from 4 th March 2022 on behalf of
the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the
physical custody of the respondent was taken over by the appellant from the Bureauof Immigration at 11.00 hours on 5th March, 2022. Thereafter, at 1.15 hours on 6 th
March 2022, an arrest memo was prepared by ED at Raipur. He was produced beforethe 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. on5th 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
Page No.# 5/8infringes 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.”
13. The other case relied upon by the learned Counsel appearing for the accused-
applicants is Dinesh Kumar (supra), wherein the Honorable Supreme Court, under
similar facts, held that the law relating to the concept of “arrest” or “custody” has
been correctly stated in the case of Niranjan Singh vs. Prabhakar Rajaram
Kharote, reported in (1980) 2 SCC 559.
14. In the aforesaid case of Dinesh Kumar (supra), the Honorable Supreme
Court referred to Paragraphs 7, 8, and the relevant portion of Paragraph 9 of the
case of Niranjan Singh (supra), which are provided herein below: –
“7. When is a person in custody, within the meaning of Section 439 CrPC? When he is
in duress 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 court’s 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 Section
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439. This word is of elastic semantics but its core meaning is that the law has taken
control of the person. The equivocatory quibbling 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 dubieties 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.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with
anticipatory bail under Section 438) is physical control or at least physical presence
of the accused in court coupled with submission to the jurisdiction and orders of the
court.
9. He can be in custody not merely when the police arrests him, produces him before a
Magistrate and gets a remand to judicial or other custody. He can be stated to be in
judicial custody when he surrenders before the court and submits to its directions.”
15. From a reading of the aforesaid two cases of the Honorable Supreme Court, it
is clear that once a person is taken under control by the police authorities, though
the formal arrest memo was not issued to the arrested person, the action of the
police authorities can be termed as the “arrest” of the accused person. Paragraph 7
of the case of Niranjan Singh (supra) has made the issue very clear in the
following words: –
“……………The equivocatory quibbling and hide-and-seek niceties sometimes heard in
court that 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 dubieties are unfair evasions of the straightforwardness of the law.”
16. Coming back to the facts of the instant case, it is seen from the records that
the accused applicants were apprehended at 5:30 AM on 09.06.2026. However, they
were produced before the learned CJM, Nagaon, only at 3:00 PM on 10.06.2026,
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which is well beyond 24 hours as mandated under Article 22(2) of the Constitution
of India. Article 22(2) of the Constitution of India provides that:
“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.”
17. In the instant case, nothing has been found on record regarding the time
taken by the police authorities to transport the accused applicants for production
before the learned CJM. Therefore, it cannot be accepted that the police took excess
time in transporting the accused applicants to the learned CJM, Nagaon, and were
thereby unable to reach the court within 24 hours.
18. Taking into account the entire facts of the case as discussed above, it is
evident that there is a clear violation of Article 22(2) of the Constitution of India in
the instant case by not producing the accused applicants before the learned CJM,
Nagaon, within a period of 24 hours of their arrest. Consequently, this violation
vitiates the entire process of arrest and production of the accused applicants.
Accordingly, the further detention of the accused applicants cannot be sustained
due to the illegality in their arrest and production before the learned trial court
beyond the time mandated by Article 22(2) of the Constitution of India.
19. Accordingly, in the facts and circumstances of the case and in view of the
above discussion, this Court directs that the accused applicants shall be released on
bail upon furnishing a bail bond of Rs. 1,00,000/- (Rupees One Lakh) each, with two
sureties of the like amount–one of whom must be a Government Servant of the
State of Assam–to the satisfaction of the learned Chief Judicial Magistrate, Nagaon,
subject to the following conditions: –
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1. That the accused applicants shall fully cooperate with the investigation and
make themselves available as and when called for by the Investigating
Officer (I.O.);
2. That the accused applicants shall not directly or indirectly make any
inducement, threat, or promise to any person acquainted with the facts of
the case so as to dissuade them from disclosing such facts to the Court or
police.
3. That the accused applicants shall not commit any illegal activities or
offenses, including any offense under the NDPS Act.
20. In the event of any violation of the bail conditions, the police/prosecution
authorities shall be at liberty to file an application seeking cancellation of bail.
21. In terms of the aforesaid directions, the instant bail application stands
disposed of.
JUDGE
Comparing Assistant
