Gauhati High Court
Page No.# 1/5 vs The National Investigation Agency on 21 April, 2026
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/5
GAHC010025032026
2026:GAU-AS:5442
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./67/2026
SRI BINANDA DAHOTIYA ALIAS SWADESH ASOM ALIAS SRI BINANDA
DOHUTIA (A 3) AND ANR
S/O- SRI TILESHWAR DAHOTIYA,R/O - VILLAGE MOHONG GAON, P.O. -
BORDUMSA, P.S. BORDUMSA, DIST- TINSUKIA, ASSAM.
2: SRI BUBUL MORAN ALIAS TIGER ASOM (A 2)
S/O SRI GUPENDRA MORAN
R/O DHIRAJ SUJAN
P.O. NABAJYOTI
P.S. BORDUMSA
DIST.- TINSUKIA
ASSAM
VERSUS
THE NATIONAL INVESTIGATION AGENCY
THROUGH ITS STANDING COUNSEL.
Advocate for the Petitioner : MR K K KALITA, MS. K BASUMATARY,MR. K UDDIN,T M
LAHKAR,MS. G DEKA,MR B PRASAD
Advocate for the Respondent : SC, NIA,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
Date : 21/04/2026
(Michael Zothankhuma, J)
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1. Heard Mr. B. Prasad, learned counsel for the appellants. Also heard Mr. R.K.D.
Choudhury, learned DSGI, appearing for the National Investigation Agency (NIA).
2. This appeal has been filed under section 21 (4) of the National Investigation Act,
2008, (here and after referred to as the Act )., challenging the order dated 09/01/2026 passed
by the Learned Special Judge, NIA, Assam, Guwahati, rejecting the bail application of the
appellants by order dated 09/01/2026.
3. The prosecution case in brief is that on 01/11/2018 at around 7 p.m., a group of six
armed men wearing Army Combat dress with their faces covered, came to Bishonimukh
Kherbari village and took away six villagers. They were then made to kneel down and they
were fired upon. Out of the six villagers, five persons died. However, the sixth villager
apparently had become unconscious on hearing the sound of gunfire and escaped death due
to the attackers believing the sixth person to be dead. Due to the said incident, Saikhowaghat
PS case no. 36/2018 was registered by the local Police under sections 120B, 121, 121A, 122,
302 and 307 IPC, section 25 (1A) and 27 of the Arms Act read with section 10 and 13 of the
Unlawful Activities (Prevention) Act, 1967. The said case was thereafter taken up by the NIA.
4. On the basis of the registered case, three accused persons were arrested, i.e. the
present two appellants, viz. Sri Binanda Dahotiya @ Swadesh Asom @ Binanda Dahutia, Sri
Bubul Moran @ Tiger Asom and one Jintu Gogoi. However, Jintu Gogoi was discharged and
charge sheet was submitted against the present appellants only, on the IO having found a
prima facie case established under the above provisions of law.
5. The appellant’s counsel submits that as on date, only 15 out of the 64 prosecution
witnesses have been examined by the learned Trial Court. He also submits that the appellants
have been in judicial custody for the last 6 years 11 months. He also submits that there is no
incriminating weapon or document seized from the two appellants by the enforcement
agencies. As such, in view of the requirement of an accused being entitled to speedy trial,
keeping in view Article 21 of the Constitution read with Section 436 A Cr. P.C., the appellants
should be released on bail.
6. The learned counsel for the appellants further submits that besides the grounds
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stated above, his main ground of challenge to the rejection of the bail application by the
learned trial Court, is on the ground that there has been violation of Article 22(1) of the
Constitution of India, inasmuch as, grounds of arrest, in writing, has not been provided to the
appellants or to their families in terms of the judgment of the Supreme Court in the case of
Vihaan Kumar v. State of Haryana reported in (2025) 5 SCC 799 and the decision of
this Court dated 21/08/2025 in Criminal Appeal 234/2025 (NIA v. Thangminlen
Mate @ Lenin Mate).
7. On the other hand, Mr. R. K. D. Choudhury, the learned DSGI, submits that the
decisions referred to by the learned counsel for the appellants, is not applicable to the facts
of this case, inasmuch as, the appellants had been arrested on 07/06/2019 and that the
arrest memo showed that the appellants had been verbally informed of the grounds of arrest
at the time of their arrest. He submits that even though the grounds of arrest had not been
given in writing, the grounds of arrest having been given verbally to the appellants, there was
no violation of Article 22(1) of the Constitution of India. In this regard, he relies upon the
decision of the Single Bench of this Court in Bail Application No. 1371/2025 (Ubaidur
Rahman @ Ubaydur Rahman Vs. The State of Assam ), wherein the decision of the
Supreme Court in Pankaj Bansal Vs. Union of India reported in (2024) 7 SCC 576 has
been reflected, holding that the grounds of arrest to be communicated in writing to the
accused would be mandatory applicable, only after the decision made by the Supreme Court
in Pankaj Bansal (Supra), which was on 03/10/2023 Thus, the non-furnishing of the
grounds of arrest in writing, prior to the decision of Pankaj Bansal (Supra), i.e. prior to
03/10/2023, could not be a ground for granting bail to the appellants.
8. The learned DSGI also submits that the appellants had surrendered to the Police
with their arms and ammunitions, which implied admission of their guilt with respect to the
incident that had resulted in the death of 5 villagers. Further, the FSL report on the bullets
and the surrendered guns of the appellants, showed that the bullets had been fired from the
guns surrendered by the appellants. The learned DSGI also submits that though prolonged
pre-trial incarceration is a matter of serious constitutional concern, when a special statute has
conditioned the grant of bail on fulfilment of certain conditions, the Constitutional Court
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cannot bypass or avoid the restraint provided in the special statute. In the present case,
section 43D(5) of the Unlawful Activities (Prevention) Act 1967 ( hereinafter referred to as the
1967 Act) provides certain conditions to be fulfilled prior to grant of bail and as such, unless
the conditions are fulfilled, bail should not be granted, keeping in view the evidence and the
FSL report, which points out to the guilt of the appellants. In this regard, he has relied upon
the judgment of the Supreme Court in the case of Gulfisha Fatima vs. State
(Government of NCT of Delhi) reported in 2026 SCC Online SC 10. He accordingly
submits that there being no infirmity with the decision of the Learned Trial Court, the present
appeal should be rejected.
9. We have heard the learned counsels for the parties.
10. In the case of Pankaj Bansal (Supra), the Supreme Court held that grounds of
arrest must be communicated in writing to the accused. However, the Supreme Court in the
above case had also clarified that the said requirement would be applicable “henceforth”, i.e.
only from the date of the decision made in the case of Pankaj Bansal (Supra). As the
appellants had been arrested on 07/06/2019, i.e. prior to the decision of the Supreme Court
in Pankaj Bansal (Supra), Vihan Kumar(Supra) and Prabir Purkayastha Vs. State
(NCT of Delhi) reported in (2024) 8 SCC 254, the verbal communication of the grounds of
arrest to the appellants at the time of their arrest in the year 2019, amounts to substantial
compliance with Article 22(1) of the Constitution and as such, the non-furnishing of the
grounds of arrest in writing in 2019, cannot be a ground for granting bail to the appellants.
11. With regard to the stand taken by the Learned Counsel for the appellants, that the
appellants had undergone 6 years 11 months incarceration since their arrest, we have noticed
that the sentence that can be inflicted upon the appellants, if found guilty of the crimes by
the Learned Trial Court, would range from 14 years to life imprisonment to death, keeping in
view section 436 A Cr.P.C. and the equivalent section 479 BNSS. We are accordingly of the
view that the said provision cannot be applied for grant of bail at this stage.
12. With regard to the stand taken by the appellants’ counsel that there was no
incriminating weapon or document seized from the appellants, the written objection of the
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respondents regarding the FSL reports, prima facie shows that the bullets that killed the
deceased villagers had apparently been fired from the guns of the appellants.
13. Keeping all the above in view, we do not find any ground to interfere with the
decision of the learned trial Court in rejecting the bail application of the appellants. The
appeal is accordingly dismissed.
JUDGE JUDGE Comparing Assistant