Gauhati High Court
Dipu Mahanta vs The State Of Assam on 17 July, 2025
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GAHC010126112025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1932/2025
DIPU MAHANTA
S/O LATE NILKANTA MAHANTA
R/O VILL- SUTARKUCHI, P.S. MUKALMUA, DIST. NALBARI, ASSAM,
PIN-781126.
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR P D BHUYAN, MR S DUSAD
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 17.07.2025
Heard Mr. P.D Bhuyan, learned counsel for the petitioner. Also heard Mr. B.
Sarmah, learned Additional Public Prosecutor.
2. This application under Section 483 BNSS has been filed by the petitioner
namely, Sri, Dipu Mahanta, who is detained behind the bars since 10.11.2023 ( for
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more than 1 year 8 months) in connection with NDPS Case No. 13/2024
corresponding to Mukalmua PS Case No. 561/2023 under Section 22(c)/29 of the
NDPS Act.
3. The gist of accusation in this Case is that on 11.11.2023 one Shri
Tarani Das had lodged an FIR before the Officer-In-Charge of Mukalmua
Police Station, inter-alia, alleging that a reliable information was received by
the In-Charge of Adabari Police Post from secret sources on 11.11.2023 to
the effect that large number of narcotic and psychotropic drugs have been
kept in the house of one Tapan Mahanta. The informer also revealed that
Tapan Mohanta, Saddam Hussain and Dipu Mohanta are involved in
trafficking of narcotic drugs.
4. Accordingly, a general diary entry was made by the Officer-In-Charge of
Mukalmua Police Station namely by GD Entry No. 11.11.2023 and a police
team was constituted to conduct the search.
5. Accordinlgy, the police team took the accused Tapan Mahanta and
Saddam Hussain present petitioner from the stationary shop of Tapan
Mahanta and proceeded to the house of Tapan Mahanta and during search
of the house premises of accused Tapan Mahanta, 38,880 numbers of Spas
Trancan Plus Capsules were found there.
6. Learned counsel for the petitioner has submitted that the petitioner was
arrested in this case on 12.11.2023 and he has been languishing behind the
bars for last more than 1 year 8 months. However, out of total 15 listed
prosecution witnesses till date only 4 prosecution witnesses have been
examined. He submits that the petitioner is entitled to get bail for violations
of his fundamental rights guaranteed under Article 21 of the Constitution on
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account of prolong incarceration.
7. He further submits that the petitioner is also seeking bail for violation of
his fundamental rights guaranteed under Article 22(1) of the Constitution of
India at the time of his arrest. He submits that though notice under Section
50 of the Code of Criminal Procedure, 1973 was served on him at time of his
arrest, same does not contain any ground of arrest. It only contains the Case
No. in which the petitioner was arrested and the penal provision involved in
that case. Nothing apart from the aforesaid facts is there in the said notice.
8. Learned Counsel for the petitioner has further submitted that in the
meanwhile two of the co-accused namely Tapan Mahanta and Saddam
Hussain were already allowed to go on bail by this Court and, therefore, he
also prays for allowing the petitioner to go on bail.
9. On the other hand learned Additional Public Prosecutor has submitted
that the quantity of contraband seized in this case is of commercial quantity
and, therefore, the embargo of Section 37 of the NDPS Act is applicable to
this case. He, however, fairly submits that the notice under Section 50 which
is available on record, which was served on the petitioner at the time of his
arrest, does not contain any grounds of arrest.
10. I have considered the submissions made by the learned counsel
appearing for both sides and have gone through the scanned copy of the
case records of NDPS Case No. 13/2024, which was requisitioned in
connection with this case.
11. In the instant case, it appears that the petitioner has been languishing
behind the bars for more than 1 year 8 months and only 4 out of total 15
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prosecution witnesses have been examined.
12. It appears from the above facts that there is an unlikelihood of early
culmination of the trial. The Apex Court in many of its rulings have observed
that prolonged incarceration over-rides the embargo of the Section 37 of the
NDPS Act,1985 and in a case where is the Court is of considered opinion that
the incarceration is long enough in such a case it may grant bail to an
accused in spite of the embargo of the Section 37 of the NDPS Act as in such
a case the fundamental rights guaranteed under Article 21 of the
Constitution of India would outweigh the embargo of Section 37 of the NDPS
Act. Moreover, in this case it also appears that the petitioner was not
furnished with the grounds of arrest at the time of his arrest as the notice
served on him under Section 50 of the CrPC does not contain any such
ground.
13. In the case of “Vihan Kumar Vs. State of Haryana and Another“
(Supra), the Apex Court has observed that any violation of the constitutional
mandate of punishing the grounds of arrest to an arrestee as the time of his
arrest in writing would be a violation of Article 22(1) of the Constitution of
India and once such a violation is established, the arrest of such an arrestee
itself becomes illegal and on that grounds, such an arrestee is entitled to get
bail.
14. For the reasons discussed in the forgoing paragraphs, this Court is of
the considered opinion that for violation of the fundamental rights of the
petitioner guaranteed under Article 21 of the Constitution of India as well as
under Article 22 (1) of the Constitution of India, he is entitled to get bail in
this case.
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15. Accordingly, the petitioner is allowed to go on bail of Rs ; 1,00,000/-
( Rupees one lakh) with two sureties of like amount subject to the
satisfaction of the trial court with following conditions :
i. That the petitioner shall cooperate in the trial of
Special NDPS Case No. 13/2024, which is pending before the
Trial Court;
ii. That the petitioner shall appear before the Trial Court
as and when so required by the Trial Court;
iii. That the petitioner shall not directly or indirectly make
any inducement, threat, or promise to any person who may be
acquainted with the facts of the case, so as to dissuade such
person from disclosing such facts before the Trial Court in the
trial pending against the present petitioners;
iv. That the petitioner shall provide their contact details
including photocopies of his Adhar Card or Driving License of PAN
Card as well as Mobile Number, and other contact details before
the Trial Court;
v. That the petitioner shall not leave the jurisdiction of the
Trial Court without prior permission of the Trial Court and when
such leave is granted by the Trial Court, the petitioner shall
submit his leave address and contact details during such leave
before the Trial Court; andvi. That the petitioner shall not commit any offence while
on bail.
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16. This Bail Application accordingly, disposed of.
JUDGE
Comparing Assistant
