Lalthawmcheuva vs Union of India

(K. Goswami, J)

Heard Mr. Lalthangmawia, learned counsel for the appellant. Also heard Mr. C. Zoramchhana, learned Special Public Prosecutor, NIA assisted by Mr. Lalvensanga, learned counsel for the respondent.

The present appeal has been filed under Section 21 of the National Investigation Agency Act, 2008 challenging the impugned judgment and order dated 22.06.2026 passed by the learned Judge, Special Court, NIA, Aizawl, Mizoram in Bail Application No. 62/2026 arising out of NIA Case No. RC-05/2025/NIA/DLI registered under Sections 61(2)(a) BNS read with Section 23(2) of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as UAPA], read with Section 25 (1-AA) of the Arms Act read with Section 14A of the Foreigners Act, whereby the bail application of the appellant was rejected.

The brief facts of the case are that on 15.01.2025, the Mizoram Police intercepted two vehicles and arrested five suspected individuals, including the present accused appellant, which led to the recovery of six AK-47 rifles, 13 empty magazines and 10,050 rounds of ammunition from the outskirts of Saithah village, Mamit District, Mizoram. The arms and ammunition were suspected to have been smuggled from a foreign country with the intention of further supplying the same to a terrorist organisation/gang. Two vehicles were also seized by the Mizoram Police from the possession of the accused persons, including the present appellant.

Accordingly, the Mizoram Police registered FIR No. 02/2025 dated 15.01.2025 under Section 61(2)(a) of the Bharatiya Nyaya Sanhita, 2023 (BNS), read with Sections 13/16/18/20/23 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), Section 25(1-AA) of the Arms Act and Section 14A of the Foreigners Act, at West Phaileng Police Station, District Mamit, Mizoram. Subsequently, the case was transferred to the National Investigation Agency (NIA) for investigation.

In compliance with the Ministry of Home Affairs Order No. 11011/15/2025/NIA dated 06.03.2025, the NIA, New Delhi Police Station, re-registered the aforesaid case as NIA Case FIR No. RC-05/2025/NIA/DLI dated 17.03.2025 under Section 61(2)(a) of the BNS, read with Sections 13/16/18/20/23 of the UAPA, Section 25(1-AA) of the Arms Act and Section 14A of the Foreigners Act against the accused persons, including the present appellant, in connection with the recovery of the aforesaid arms and ammunition.

The said FIR was placed before the learned Special Court, NIA, Aizawl, on 19.03.2025, and accordingly, the investigation was taken over by the NIA. During the course of investigation, the NIA collected oral, documentary and technical evidence and, upon completion of the investigation, submitted a charge-sheet on 10.07.2025 against the accused appellant and the other four accused persons under Section 61(2)(a) of the BNS, read with Section 23(2) of the UAPA, Section 25(1-AA) of the Arms Act and Section 14A of the Foreigners Act. The learned Special Court, NIA, Aizawl, thereafter took cognizance of the offences against the accused appellant and the co-accused.

The learned Special Court, NIA, Aizawl, vide order dated 22.06.2026, rejected the bail application preferred by the accused appellant. Aggrieved thereby, the present appeal has been preferred.

Mr. Lalthangmawia, learned counsel appearing for the appellant, primarily contends that the arrest of the appellant was effected in total contravention of Sections 47 and 48 of the BNSS, thereby violating Articles 21 and 22(1) of the Constitution of India and rendering the arrest illegal. It is submitted that no grounds of arrest, as contemplated under Section 47 of the BNSS, were communicated to the appellant. It is further submitted that no arrest intimation, as contemplated under Section 48 of the BNSS, was given to any family member, friend or relative of the appellant. According to the learned counsel, there has thus been a clear violation of the fundamental rights guaranteed to the accused.

In support of his submissions, learned counsel relies upon the decisions of the Apex Court in Pankaj Bansal v. Union of India, reported in (2024) 7 SCC 576; Vihan Kumar v. State of Haryana and Anr., reported in 2025 SCC OnLine SC 269; Prabir Purkayastha v. State (NCT of Delhi), reported in (2024) 8 SCC 254; and the judgment of the Division Bench of this Court in National Investigation Agency v. Thangminlen Mate @ Lenin Mate, in Crl. A. No. 234/2025.

It is further submitted that the cardinal principle of criminal jurisprudence that bail is the rule and jail is the exception would, in the event of violation of the constitutional safeguards under Articles 21 and 22 of the Constitution, operate notwithstanding any statutory restriction, thereby rendering the continued detention of the appellant unjustified. In support of this submission, learned counsel places reliance upon the decision of the Apex Court in Syed Iftikhar Andrabi v. National Investigation Agency, Jammu, reported in 2026 SCC OnLine SC 881.

Per contra, Mr. C. Zoramchhana, learned Special Public Prosecutor, NIA, submits that the grounds of arrest were duly communicated in writing to the appellant, who acknowledged the same by affixing his signature thereto at the date and time of his arrest, i.e., 15.01.2025 at about 1:30 p.m. It is, therefore, submitted that the requirement of Section 47 of the BNSS was duly complied with.

Learned Special Public Prosecutor further submits that the accused appellant, having disclosed the name, address and telephone number of one Ms. Kimtei as his relative, the police authorities informed the said relative telephonically about his arrest. It is accordingly submitted that the requirement of Section 48 of the BNSS also stood substantially complied with.

It is further submitted that thereafter, on 04.03.2025, the first bail application was moved on behalf of the accused appellant before the learned Special Court, NIA, which came to be rejected. Learned Special Public Prosecutor accordingly submits that the constitutional safeguards having been duly adhered to by the arresting authority, the arrest of the accused appellant cannot be held to be illegal.

It is further submitted that sufficient material is available on record indicating the involvement of the accused appellant in the offences charged, which are serious in nature, and that his continued detention is necessary in the interest of a fair trial and to obviate the possibility of his influencing the witnesses. Learned Special Public Prosecutor also submits that the accused appellant is a Myanmar national who had illegally entered India and, consequently, the embargo contained in Section 43D(5) of the UAPA is attracted.

It is further submitted that the trial has already commenced and that, out of the 39 witnesses cited by the prosecution, the evidence of one prosecution witness has already been concluded.

We have given our anxious consideration to the submissions advanced by the learned counsel for the parties and have perused the materials available on record. We have also duly considered the case laws cited at the bar.

At the outset, it may be noted that learned counsel for the accused appellant has not pressed the bail application on the merits of the prosecution case and has confined his submissions principally to the alleged contravention of Articles 21 and 22 of the Constitution read with Sections 47 and 48 of the BNSS.

Section 47 of the BNSS mandates that the person arrested shall be informed of the grounds of arrest and in the case of an offence other than a non-bailable offence, of his right to bail. Section 48 of the BNSS, on the other hand, mandates that the arresting authority shall give information regarding the arrest and the place where the arrested person is being held to a relative, friend or such other person as may be disclosed or nominated by the arrested person.

The aforesaid statutory safeguards have their foundation in Article 22(1) of the Constitution of India, which provides as follows:

In Vihan Kumar (supra), the Apex Court has held that the aforesaid constitutional mandate is incorporated in Section 47 of the BNSS, corresponding to Section 50 of the Code of Criminal Procedure, 1973. The Apex Court has further emphasised that the requirement of communicating the grounds of arrest must be understood in a manner that makes the constitutional safeguard meaningful and effective.

The Apex Court further emphasised the significance of informing the relatives, friends or nominated persons of the arrested person, as contemplated under the corresponding statutory provision, so as to enable them to take necessary steps for securing the release of the arrested person at the earliest possible opportunity. The purpose of communicating the grounds of arrest is, therefore, not a mere procedural formality, but is intended to actualise the fundamental rights to life and personal liberty guaranteed under Article 21 of the Constitution.

The Apex Court has further held that when an arrested accused alleges non-compliance with the requirement of Article 22(1) of the Constitution, the burden lies upon the investigating agency to establish compliance with the constitutional mandate.

Keeping the aforesaid principles in view, we may first examine the notice issued to the accused appellant under Section 47 of the BNSS.

The relevant portion of the notice is extracted hereunder for ready reference:

A plain reading of the aforesaid notice indicates that the accused appellant was informed in writing, at the time of his arrest, of the offences for which he was being arrested and the circumstances leading to his arrest. The notice specifically mentions the FIR number, the statutory provisions invoked, the date and time of arrest, the place of detention and the fact that the offence was non-bailable. It also sets out, in brief, the circumstances relating to the interception of the vehicles and the recovery of the arms and ammunition.

It further appears from the record that the accused appellant acknowledged the said notice by affixing his signature thereto.

Having regard to the contents of the notice and the contemporaneous record, we find that the grounds of arrest were duly communicated in writing to the accused appellant at the time of his arrest. The requirement under Section 47 of the BNSS, read with the constitutional mandate under Article 22(1), therefore, cannot be said to have been violated.

We may now turn to the alleged non-compliance with Section 48 of the BNSS. The record indicates that, at the time of his arrest, the accused appellant disclosed the name, address and telephone number of one Ms. Kimtei as his relative. The arrest memo recording the aforesaid particulars, which was acknowledged by the accused appellant by affixing his signature, forms part of the material available on record.

It further appears that, on 15.01.2025 itself, i.e., on the date of arrest, the arresting authority informed the said relative telephonically about the arrest of the accused appellant. Significantly, during the course of investigation by the NIA, Ms. Kimtei also gave a statement wherein she stated that she had received a telephone call on 15.01.2025 from a police official informing her that the accused appellant had been arrested in connection with the aforesaid case in Mamit District.

The contemporaneous records, therefore, clearly establish that the accused appellant was informed of the grounds of his arrest at the time of his arrest and that the relative nominated by him was also informed telephonically on the same day. It is further evident from the record that the first bail application on behalf of the accused appellant was filed before the learned Special Court, NIA, on 04.03.2025.

The aforesaid circumstances, taken cumulatively, demonstrate that the respondent has discharged the burden of establishing substantial compliance with the constitutional safeguards embodied in Article 22(1) of the Constitution and the statutory requirements under Sections 47 and 48 of the BNSS.

We are, therefore, of the considered view that there has been substantial compliance with the requirements of Sections 47 and 48 of the BNSS. The contention of the learned counsel for the appellant that the arrest and continued detention of the appellant are rendered illegal on account of violation of Article 22(1) of the Constitution, therefore, cannot be accepted.

Coming to the question of entitlement to bail, the principal consideration is the statutory embargo contained in Section 43D(5) of the UAPA. The said provision mandates that an accused of an offence punishable under Chapters IV and VI of the UAPA shall not be released on bail if, upon perusal of the case diary or the report under Section 173 of the Code, the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

At the stage of consideration of bail, this Court is not required to undertake a meticulous examination of the evidence or conduct a mini-trial. The inquiry is confined to examining whether the material placed by the prosecution, taken at its face value, discloses reasonable grounds for believing that the accusation against the particular accused is prima facie true.

In the present case, upon consideration of the materials placed before us, we find that there are reasonable grounds for believing that the accusation against the accused appellant is prima facie true. The materials indicate the presence of the accused appellant at the place from where the arms and ammunition were recovered. The call detail records are also stated to disclose his active involvement in the alleged conspiracy relating to the procurement and possession of restricted arms and ammunition brought from a foreign country into India. The prosecution has also placed material indicating that the accused appellant is a Myanmar national and had entered India illegally.

The charge-sheet has already been filed and the trial has commenced. Out of the 39 witnesses cited by the prosecution, the evidence of one prosecution witness has already been concluded. On a cumulative consideration of the prosecution material, therefore, the statutory threshold under Section 43D(5) of the UAPA stands satisfied and the embargo contained therein operates against the grant of bail.

Learned counsel for the appellant has relied upon the decision in Syed Iftikhar Andrabi (supra) and contended that the period of incarceration, notwithstanding the statutory restriction, warrants his release on bail. There can be no doubt that prolonged incarceration may, in an appropriate case, engage the constitutional guarantee of personal liberty under Article 21. At the same time, such consideration has to be harmonised with the statutory framework governing bail under the UAPA. The mere passage of time does not, by itself, displace the statutory embargo; the question has to be examined in the context of the nature of the allegations, the strength of the prima facie case, the role attributed to the accused, the progress of the trial and the circumstances contributing to the period of incarceration.

In the present case, the accused appellant has remained in custody since 15.01.2025 and his period of incarceration has been duly taken into consideration. However, we are not persuaded that, in the facts and circumstances of the present case, the period of incarceration has crossed the threshold of constitutional impermissibility so as to warrant overriding the statutory embargo under Section 43D(5) of the UAPA. The trial has already commenced and there is no material before us indicating any undue or unexplained delay attributable to the prosecution. Having regard to the prima facie material against the accused appellant, the nature and gravity of the allegations and the present stage of the trial, we find no ground to interfere with the order of the learned Special Court rejecting bail.

In view of the foregoing discussion, we find no infirmity, illegality or perversity in the order dated 22.06.2026 passed by the learned Judge, Special Court, NIA, Aizawl, Mizoram, rejecting the bail application of the accused appellant. The present appeal, accordingly, fails and is dismissed.

It is, however, clarified that the observations made herein are confined solely to the adjudication of the present appeal for bail. Nothing contained in this order shall be construed as an expression of opinion on the merits of the prosecution case, which shall be considered independently by the learned Trial Court in accordance with law and on the basis of the evidence adduced before it.