Vivek Hussain vs The State Of Assam on 4 May, 2026

Gauhati High Court

Vivek Hussain vs The State Of Assam on 4 May, 2026

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GAHC010074012026




                                                                   2026:GAU-AS:6127

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./1032/2026

            VIVEK HUSSAIN
            S/O- MD. AKHUR SIDDIQUE,
            R/O- TRIVNI TOLL RD NO 1, P.S.-JAIGAON, DIST.- ALIPURDUAR, WEST
            BENGAL



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR D MEDHI, G. DUTTA,MR. J N SUWAI,MR. S SARKAR

Advocate for the Respondent : PP, ASSAM,




                                    BEFORE
                        HONOURABLE MR. JUSTICE PRANJAL DAS

                                           ORDER

Date : 04.05.2026

Heard Mr. D. Medhi, learned counsel for the petitioner. Also heard Mr.
M.P. Goswami, learned Additional Public Prosecutor for the State.

SPONSORED

2. This instant bail application has been filed under section 483 of the
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Bharatiya Nagarik Suraskha Sanhita, 2023, whereby the accused petitioner
namely, Vivek Hussain, has prayed for bail in connection with GHY GRPS
Case No. 63/2026 under Section 20(b)(ii)(B) of NDPS Act.

3 . The petitioner was arrested in this case on 25.03.2026.

4. The FIR was lodged on 25-03-2026. The gist of allegations was that
surveillance was conducted at Kamakhya railway station against crime and
antisocial activities. On 24-03-2026, at 7.20 pm, one male person was
found coming in a suspicious manner. He was checked and revealed his
name as Vivek Hussain from West Bengal. It is alleged that he was asked to
open the bag which he was carrying and therein, two packets were found
of suspected ganja, which was weighed and found to be 2.223 kgs. Some
other materials were also seized and the accused was brought to the RPF
post.

5. The arrest memo indicates the date of arrest as 25-03-2026 at 9 pm.
The case diary has been received and the forensic report is awaited.

6. It is submitted by the learned Additional Public Prosecutor that as
per the seizure list, contraband was seized from the possession of the
petitioner. The prosecution summits that at this stage he has objection to
grant of bail and that on the date of arrest reflected in the arrest memo,
there is no violation of the constitutional provisions.

7. One of the contentions of the learned counsel for the petitioner is
that he was detained as revealed by the FIR at 7.20 pm on 24-03-2026 and
produced before the Magistrate on 26-03-2026 as per the forwarding
report, which is beyond the period of 24 hours and thereby violating the
constitutional provisions, making the further detention untenable. However,
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as already stated in the said forwarding report, the date and time of arrest
is mentioned as 25-03-2026 at 9 pm.

In support of this contention, the learned counsel for the petitioner
has referred to the decision of the Directorate of Enforcement vs.
Subhash Sharma, reported in 2025 INSC 141 and two other decisions
of the Co-ordinated Bench of this Court in BA/614/2026 and BA/866/2026,
which have reference to the decision in Subhash Sharma (supra).

8. The relevant paragraph of Subhash Sharma (supra) is reproduced
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 of Immigration detained the respondent at IGI Airport

from 4th 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 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 6 th 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
filled in by hand. Admittedly, the respondent was not produced before the

nearest learned Magistrate within 24 hours from 11.00 a.m. on 5 th 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
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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.”

9. In the said decision, in the facts of the case, the accused was
detained at the IGI airport at 11 hours on 5-03-2022. But he was shown
arrested at 1.15 am on 06-03-2022 and produced on 06-03-2022 at 1.15
pm. The Hon’ble Apex Court, in the facts of the case, held the production to
be beyond the period of 24 hours, counting the said period from his
detention at 11 hours on 5-03-2022. The learned counsel for the Petitioner
seeks the benefit of a similar application in the instant case.

10. In the co-ordinate Bench decisions of this Court mentioned above,
Subhash Sharma(supra) was referred to and such benefit was given to the
accused persons in those cases. I have given my consideration to the
matter. The investigation has progressed and pending only for the FSL
report.

11. Moreover, there appears to be some infirmity in the arrest procedure
as well. In the entire facts and circumstances, and also considering the
length of detention, the accused should be allowed to go on at this stage,
subject to conditions.

12. Accordingly, the accused-petitioner, named above, shall be released
on bail in connection with GHY GRPS Case No. 63/2026 under Section 20(b)

(ii)(B) of NDPS Act, on furnishing bail bond of Rs.50,000/- with one suitable
surety of the like amount to the satisfaction of learned concerned court
[Special Judge, Kamrup(M)].

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13. The direction for bail is further subject to the conditions:

(a) That the petitioner shall render full co-operation to the
remaining investigation;

(b) That the petitioner shall not hamper or tamper with evidence;

and

(c) That the petitioner shall not indulge in any illegal activity,
including under the NDPS Act.

14. Violation or breach of any condition(s) shall entail cancellation of
bail.

15. With the above observations, this bail petition stands allowed and
disposed of accordingly.

16. Send back the case diary.

JUDGE

Comparing Assistant