THE GAUHATI HIGH COURT v. THE STATE OF ASSAM

ORDER

20.08.2026. Heard Mr. B. Choudhury, learned counsel for the accused. Also heard Mr. P. Borthakur, learned Addl. P.P. for the state respondent.

2. This application, under Section 483 of the BNSS 2023, is preferred by accused Md. Sanidul Hoque who has been languishing in jail hazoot since 08.05.2026, in connection with Barpeta Road Page No.# 2/5 Police Station Case No: 44 of 2026 registered under Sections 22(C) NDPS Act, pending before the learned Special Judge (NDPS), Barpeta.

3. It is to be noted here that above noted case has been registered on the basis of an FIR lodged by one Bikash Dehingia, SI of Police, Barpeta Road Police Station on 08.05.2026.

4. The essence of allegation in the FIR, dated 08.05.2026 against the accused is that on

07.05.2026, at around 8:20 PM, he was found loitering in a vehicle at Satbhanirtrup area and accordingly he was apprehended and during search one Realme mobile handset and one yellow and coffee-coloured plastic bag were recovered from his vehicle bearing registration No. WB-64D-5394, and on examination of the bag, 149 bottles of Eskuf cough syrup containing Codeine Phosphate and Triprolidine Hydrochloride, Batch No. QEKSL038, were recovered. The substance was tested with the NDPS reagent kit and yielded positive results for Codeine Phosphate. Each bottle was weighed in the presence of witnesses and officers, and the total net weight of the seized contraband was found to be

17.877 kilograms.

5. Mr. Choudhury, learned counsel for the accused, submits that the accused was apprehended on

07.05.2026 and he was produced before the Court on 09.05.2026. The period is beyond 24 hours. In support of his submission Mr. Choudhury has referred to the FIR and the Arrest Memo and the Forwarding report. He also submits that though in the Forwarding Report and in Arrest Memo the time of arrest of the accused is shown as 11 AM on 08.05.2026, yet from the Seizure List and the FIR reveals that the accused was apprehended on 07.05.2026 and since then he had been in custody of police and only to save the period of 24 hours his arrest was shown as 11 AM on 08.05.2026.

5.1. Mr. Choudhury also submits that since the accused was produced before the court beyond 24 hours, his fundamental right under Article 22(2) of the Constitution of India, was violated and as such he is entitled to be released on bail.

6. Per contra, Mr. Borthakur, learned Addl. P.P. has vehemently opposed the petition. He submits that the accused though, was apprehended on 07.05.2026, at 8.20 pm yet he was formally arrested only on 08.05.2026 at about 11 am and he was produced before the learned Court on the same day and due to some reason the learned Court had directed to produce the accused on 09.05.2026 and in support of his submission he has referred to some of GD Entries available on the record. He also submits that the accused was produced before the learned Court well within the period of 24 hours and therefore he submits that this petition is devoid of merit and therefore it is contended to dismiss the same.

7. Having heard the submissions of learned Advocates for both sides, this Court has carefully gone through the petition and the documents placed on record and also gone through the scanned copy of the record received from the learned Trial Court. Page No.# 3/5

8. It appears from the FIR lodged on 08.05.2026 that the accused was apprehended on 07.05.2026, at around 8:20 PM, while he was found loitering in a vehicle at Satbhanirtrup area. It also appears that during search one Realme mobile handset and one yellow and coffee-coloured plastic bag were recovered from his vehicle bearing registration No. WB-64D-5394, and on examination of the bag, 149 bottles of Eskuf cough syrup containing Codeine Phosphate and Triprolidine Hydrochloride, Batch No. QEKSL038, were recovered and the same were seized preparing Seizure List on the same night at 8.41 pm at the place of occurrence. It also appears that though the accused was apprehended on 07.05.2026 and he was produced before the Court on 09.05.2026. As per Forwarding Report and Arrest Memo the time of arrest of the accused is shown as 11 AM on 08.05.2026. If the said date and time of arrest are accepted as correct then it is well within the period of 24 hours he was produced before the learned Court. But if his date of arrest is counted from the date of his apprehension i.e. 07.05.2026, at 8.20 pm then he was produced before the learned Court beyond 24 hours.

9. It is the categorical contention of Mr. Choudhury that the date apprehension has to be accepted as the date of his arrest notwithstanding showing his formal date and time of arrest shown in the Forwarding Report as 08.05.2026 at 11 am, since from the time of his apprehension his movement was restricted.

10. There appears to be substance in the submission of Mr. Choudhury, learned counsel for the accused. It is not in dispute that the accused was produced before the learned Court on 09.05.2026. Now the issue before this Court is from which date the 24 hours has to be counted whether from the date and time of apprehension or form the date and time shown by the I.O. as date and time of arrest.

11. This issue was dealt with by Hon’ble Supreme Court in the case of Directorate of Enforcement vs. Subhash Sharma reported in (2025 INSC 141). In the said case the accused was detained/taken into custody by immigration authorities, pursuant to an ED Look Out Circular, at 11:00 a.m. on 5 March 2022. However, the ED formally showed the arrest only at 1:15 a.m. on 6 March 2022 and produced him later that day. Then Hon’ble Supreme Court held that the arrest was illegal because he was not produced before the Magistrate within 24 hours from 11:00 a.m. on 5 March. It has been held that the formal later timing did not save the arrest. Once the arrest is found illegal for violation of Article 22(2), the court must release the person on bail. The Court emphasised that continuation in custody beyond 24 hours from the actual restraint violates fundamental rights under Articles 21 and 22. Page No.# 4/5

11.1. Relevant paragraph is extracted herein below for ready reference. :- “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 2 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 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 3 right to liberty guaranteed under Article 21 has been violated.”

12. It appears that the word ‘Apprehension’ is often used interchangeably with the act of taking into custody, however, for absconding accused under Section 299 Cr.P.C./Section 335 BNSS). And in fact it refers to the physical/actual restraint as distinct from the formal recorded arrest.

13. In the instant case, the accused was taken into the custody on 07.05.2026 at about 8.20 pm and he was produced before the learned Court on 09.05.2026. This period is beyond 24 hours. And as such Page No.# 5/5 right of the accused under Article 22(2), of the Constitution of India, i.e. production of arrested person before the nearest Magistrate within 24 hours of arrest (excluding journey time), stands violated and thereby rendered the arrest and remand vulnerable.

13.1. It is, however, a fact that as per GD Entry, No. 016, dated 08.05.2026, of Barpeta Road P.S., which is available on the record of the learned Trial Court, the accused was taken to the learned Chief Judicial Magistrate, by WSI Madhuri Das, but, the learned CJM had directed the WSI to produce the accused before the Court on 09.05.2026, for which he was taken back and kept in custody. Even if this contention is accepted as correct yet, the fact remains that the accused was produced before the Court beyond 24 hours.

14. In that view of the matter, this Court is inclined to allow this petition. It is provided that on furnishing a bond of Rs. 25,000/- (Rupees Twenty Five Thousand) with one surety of like amount, to the satisfaction of learned Trial Court, the accused shall be enlarged on bail. The learned Trial Court will be at liberty to impose any condition to ensure attendance of the accused during trial.

15. In terms of above, the bail application stands disposed of. JUDGE Comparing Assistant