Gauhati High Court
Yahiya Khan vs The State Of Assam on 12 February, 2026
Page No.# 1/8
GAHC010256462025
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3991/2025
YAHIYA KHAN
SON OF MD. NURHIM
RESIDENT OF VILL- KWAKTA
P.S. MOIRANG, DIST. BISHNUPUR, MANIPUR.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. A CHAUDHURY, MR. D BORA,MR. N MAHAJAN,MR. P K
DAS
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
12.02.2026
Heard Mr. BK Mahajan, learned counsel appearing for the accused-
applicant. Also heard Mr. RJ Baruah, learned Additional Public Prosecutor
appearing for the State respondent.
2. This is an application filed under Section 483 of the BNSS, 2023 praying
for grant of bail to the accused-applicant, namely, Yahiya Khan in connection
with Special (NDPS) Case No. 37/2025 pending before the learned Special
Judge, Sribhumi arising out of Badarpur Police Station Case No. 76/2025
Page No.# 2/8
registered under Sections 22(C)/25/29 of the NDPS Act, 1985.
3. An FIR was lodged by one Dibakor Gogoi, S.I. in-Charge Malua P.I.C.P.
before the Officer-in-Charge of Badarpur Police Station alleging, inter alia that
on receipt of credible information regarding movement of vehicles suspected to
be involved in transportation of the narcotic contraband (Yaba Tablets), the
police intercepted one bolero pickup vehicle bearing registration No. AS-01-MC-
2851 and another Bolero Camper (Goods Carrier) without a number plate
enroute from Silchar to Sribhumi via Badarpur. The aforesaid two suspected
vehicles were intercepted at Kandigram, Jabalpur. The driver of one vehicle
bearing registration No. AS-01-MC-2851 identified himself as Yahiya Khan, the
present accused-applicant and the other driver identified himself as Suman
Uddin, who was driving the Bolero Camper. On interrogation, the driver of the
vehicle, namely, Yahiya Khan confessed that Yaba Tablets were being
transported from Manipur which were concealed inside a secret chamber of the
vehicle. He also admitted that he intended to hand over the suspected Yaba
Tablets to the Bolero Camper that was following him. Subsequently, in the
presence of independent witnesses and the Superintendent of Police Sribhumi, a
search of the vehicle, i.e., AS-01-MC-2851 was conducted and suspected Yaba
Tablets were recovered from a secret chamber located in front of the radiator.
The total weight of the suspected Yaba Tablets seized was found to be 16.673
KGs (16 Kg and 673 Grams) were seized by the police along with other articles.
On receipt of the FIR, Badarpur Police Station Case No. 76/2025 was registered
against the accused – applicant under the aforementioned sections and the
accused persons were arrested on 18.04.2025 and forwarded to the learned
Court of Chief Judicial Magistrate, Sribhumi.
4. Mr. Mahajan, learned counsel appearing for the accused – applicant
Page No.# 3/8
submits that though the arrest was shown as 18.04.2025, in fact, the accused –
applicant was arrested on 17.04.2025 at 07:20 AM. In this connection, he has
relied upon the search and seizure list of the Badarpur GDE No. 32/2025 which
has been annexed as Annexure-H in the additional affidavit filed in the instant
case. In view of the aforesaid, he submits that the accused – applicant was, in
fact, taken into custody at 17.04.2025 at 07:20 AM. He further submits that the
accused – applicant was produced before the learned Court of Chief Judicial
Magistrate, Sribhumi on 18.04.2025 at 03:40 PM. Therefore, he submits that the
accused – applicant was in fact kept in police custody without producing him
before the nearest Magistrate within 24 hours. He submits that by not producing
the accused – applicant within 24 hours which is mandated under Section 58 of
the BNSS is violative of the statutory provision which gives the accused –
applicant unfettered right to get the bail in the instant case.
5. In this connection, Mr. Mahajan, learned counsel appearing for the accused
– applicant has referred to the case of Niranjan Singh and Anr. Vs.
Prabhakar Rajaram Kharote and Ors. reported in (1980) 2 SCC 559;
Directorate of Enforcement Vs. Subhash Sharma reported in 2025 SCC
OnLine SC 240 and the case of Suman Uddin Vs. State of Assam [Bail
Appln./4052/2025] decided by a Coordinate Bench of this Court on
29.01.2026. By referring to the aforesaid cases, he submits that the Hon’ble
Supreme Court as well as this Court has held that in the event of the arrested
person is not produced within a period of 24 hours to the nearest Magistrate,
the accused person is liable to be released on bail, being the arrest is in
violation of the mandate of Section 58 of BNSS which, in fact, violates the
personal liberty that has been guaranteed under Articles 21 and 22 of the
Constitution of India. He submits that the co-accused has already been granted
Page No.# 4/8
bail on the same ground by a Coordinate Bench of this Court in the aforesaid
case of Suman Uddin (supra). In the instant case also, the accused – applicant
being similarly placed should be allowed to go on bail due to the apparent
violation of Section 58 of BNSS. He further submits that Section 62 which
provides for strict compliance of the provisions of the BNSS while arresting an
accused person under the BNSS is not fulfilled.
6. Per contra, Mr. Baruah, learned Additional Public Prosecutor submits that
as per the materials available in the Case Diary, the accused – applicant was
taken into custody on 18.04.2025 at 08:30 AM and he was produced before the
Chief Judicial Magistrate, Sribhumi on the same date at 03:40 PM and therefore,
there is no violation of Section 58 of BNSS. Therefore, the accused – applicant
should not be granted bail at this stage. In view of the aforesaid submission, he
opposes the prayer of the accused – applicant in the instant bail application.
7. This Court has gone through the Case Diary that has been produced
before this Court. It is seen from the search and seizure list dated 17.04.2025
that the date and time of seizure was clearly mentioned as 07:20 AM. It is also
appeared from the Case Diary that the accused – applicant was apprehended at
the same time and taken to Badarpur Police Station and thereafter, he was
shown to be arrested on 18.04.2025 at 08:30 AM. As the aforesaid facts make it
clear that the accused – applicant, in fact, was taken in the police custody on
17.04.2025 at 07:20 AM only along with the seized materials. The materials
available in the Case Diary also reveal that the police proceeded from the
Badarpur Police Station at 03:00 PM to the learned Court of Chief Judicial
Magistrate, Sribhumi wherein he was produced on 18.04.2025 at 03:40 PM. On
a query to the learned Additional Public Prosecutor with regard to the fact of
taking the accused – applicant from the Police Station to the learned Chief
Page No.# 5/8
Judicial Magistrate, Sribhumi, the same is not disputed him.
8. The Hon’ble Supreme Court in the case of Niranjan Singh (supra) in
paragraph 7 of the case as held as under:
“When is a person in custody, within the meaning of Section 439 Cr.P.C.? 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 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 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.”
9. The Hon’ble Supreme Court in the case of Subhash Sharma (supra) in
paragraphs 4, 6 & 8 of the case held as under:
“4. In paragraph 10 of the impugned judgment, the High Court has recorded
factual findings which read thus:
‘From the documents available in the case diary and the aforesaid order,
it is crystal clear that the applicant was detained and taken into custody
at 18,00 hours (6 pm) on 04.03.2022 at IGI Airport, New Delhi when the
Bureau of Immigration executed the LOC issued against the applicant and
Page No.# 6/8held him in custody on behalf of ED. It is also not in dispute that ED took
physical custody of the applicant from the Bureau of Immigration at
11.00 hours (11 am) at IGI Airport on 05.03.2022 and brought him to
Raipur where the ED in the afternoon on 06.03.2022 before the remand
Court.’
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
5 th 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
Page No.# 7/8of 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.”.
10. Coming to the fact of the case as discussed above, it is evident that the
accused – applicant was in effective custody of the police since 17.04.2025 at
07:20 AM and the period of 24 hrs would expire on 18.04.2025 at 07:20 AM.
Even if a period of 2 hours is allowed for transportation, which is on the higher
side of time to travel from Jabalpur of NH-37 to the learned Court of Chief
Judicial Magistrate, Sribhumi, the permissible period of production before the
nearest Magistrate on 18.04.2025 would be at 09:20 AM. The accused –
applicant was produced before the learned Chief Judicial Magistrate, Sribhumi
beyond 24 hours time is violative of Section 58 of BNSS. In the instant case,
admittedly, the accused – applicant was produced before the learned Chief
Judicial Magistrate, Sribhumi on 18.04.2025 at 03:40 PM.
11. In view of the judicial pronouncements of the Hon’ble Supreme Court as
referred to above, the arrest in the instant case, stands vitiated due to non-
production of the accused – applicant within a period of 24 hrs of his arrest
before the nearest Magistrate.
12. From the aforesaid facts, it is discernible that there is a violation of the
mandate of Section 58 read with Section 62 of BNSS in the instant case which
goes to the root of the matter, making the whole arrest procedure violative of
Article 21 and 22 of the Constitution of India. Therefore, rigours of Section 37 of
NDPS Act will not be applicable to the instant case.
13. Before parting, this Court would like to point out that though the huge
Page No.# 8/8
quantity of narcotic contraband material, i.e., Yaba Tablets were recovered in
the instant case, the personal liberty of a person as provided under the
Constitution of India gets priority and in violation of his liberty which is not as
per the procedure laid down by the prevailing laws cannot be brushed aside. In
view of the aforesaid discussions and taking into account of the statutory
provisions as well as mandate of the judicial pronouncements by the Hon’ble
Supreme Court, this Court is of the considered view that the accused – applicant
should be released on bail at this stage because of the violation of the statutory
provisions while arresting the accused – applicant.
14. Therefore, it is directed that the accused-applicant shall be released
forthwith from the judicial custody on furnishing a bail bond of Rs.2,00,000/-
(Rupees Two Lakhs) with two local sureties of like nature, at least one of whom
should be a Government servant, to the satisfaction of the learned Special
Judge, Sribhumi, subject to the following conditions: –
(i) That the accused-applicant shall appear before the Trial Court as
and when required;
(ii) The accused-applicant shall not hamper or tamper with any evidence
or influence any witnesses connected with the case.
15. Accordingly, the instant bail application is disposed of as allowed.
16. TCR so received to be sent back.
JUDGE
Comparing Assistant
