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Judgment
This is an application for grant of bail made by the petitioner herein on behalf of his son, Shri. Ferdinand M. Marak who is an accused in connection with Crl. NDPS Case No. 1 of 2026 arising out of NCB Guwahati Crime No. 11 of 2025 under Section 8(c), 22(c), 23, 27A, 28 and 29 of the NDPS Act. It may be mentioned that this is the second bail application filed by the petitioner before this Court after the third bail application for grant of bail was rejected by the learned Trial Court.
Mr. S. Pandit, learned counsel for the petitioner has submitted that according to the respondent herein, on specific information, the respondent had intercepted one passenger vehicle on 31.09.2025 and a thorough search of two of the occupants Shri. Shankar D. Sangma and Smt. Terina Sangma was conducted where a seizure of methamphetamine weighing about 1.957 kgs was made from their possession and was accordingly arrested however, they were granted bail on 28.10.2025 and 06.11.2025 by the learned Trial Court on ground of non-communication of grounds of arrest.
Though investigation of the case was ongoing, in the meantime, neither summon or notice was served upon the accused person herein nor was he arrested during investigation. However, on completion of investigation, the respondent filed a complaint under Section 36 A before the learned Special Judge (NDSP), Jowai against 5 accused persons including the accused person herein who was declared absconder in the case.
It is the submission of the learned counsel that on being directed by the learned Special Judge (NDPS), Jowai vide order dated 27.01.2026, the complaint was registered as Criminal NDPS Case No. 1 of 2026, cognizance being duly taken by the said special court where summon was caused to be issued to all the accused persons, including the present accused person whose bail application is under consideration herein.
In spite of the fact that no summon or notice was served upon the accused person in question requiring his appearance before the learned Trial Court, in the month of February 2026, he was informed by the Dangar Police Outpost, that a bailable warrant of arrest has been issued against him by the Trial Court requiring him to appear before the Court on 12.03.2026. Accordingly, he made his appearance before the Trial Court on that day, but was immediately taken into custody and remanded to fourteen days’ judicial custody. Till date he is still languishing in jail, submits the learned counsel.
The learned counsel has also submitted that the detention of the accused person in question is in violation of his personal liberty as guaranteed under Article 21 of the Constitution, the fact being that the law relating to criminal complaint as provided under Section 223 of the BNSS mandates that “No cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard”, however, the learned Trial Court vide order dated 27.01.2026 had simply entertained the complaint filed by the NCB without giving any opportunity to the accused person to be heard in the first instance.
The case of Parvinder Singh v. Directorate of Enforcement has been cited by the learned counsel in this regard, wherein vide order dated 19.05.2026 the Supreme Court in SLP (Crl.) No. 12055 of 2025 at para 37 of the same has held that the appellant therein has not been heard at the time of taking cognizance, the mandate of a legislation which ensures the right of the accused to a fair trial, whose liberty is at stake, cannot be dispensed with, the same is not a mere irregularity but is an illegality that would vitiate the very proceedings. This, according to the learned counsel is applicable to the case of the accused person herein.
The next contention of the learned counsel is that the learned Trial Court in its order dated 27.01.2026 having acknowledged the complaint filed by the NCB and cognizance of the offence taken, has not passed any order or granted permission for further investigation of the matter after the filing of the final complaint. However, despite this, the NCB continued the investigation and made a prayer before the court for remand of the accused person in question along with two others to three days’ NCB custody which was allowed. The remand of the accused person to NCB custody is per se illegal as he was not produced physically or virtually before the Trial Court at the time his custody was given to the NCB which is a violation of the provision of Section 187(4) BNSS. The case of Jaskaran Jeet Singh Deol v. State of Punjab, Criminal Appeal No. 4234 of 2026, para 31.1 has been cited by the learned counsel wherein the Supreme Court vide order dated 21.09.2026 has observed as follows:
“31.1.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 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. When arrest is illegal or vitiated, bail cannot be denied notwithstanding non-fulfilment of the twin tests under Section 45(1)(ii) of the PMLA. It is because it is the duty of every court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution.”
The learned counsel has further submitted that even on facts the accused person in question cannot be implicated in the case inasmuch as he was accused of being involved in monetary transaction through UPI for a sum of ₹ 16,000/- (Rupees Sixteen Thousand) only with one of the co-accused in the case, Shri. Shankar D. Sangma. However, the accused person is not denying the fact that he has indeed sent money to the said Shri. Shankar D. Sangma who is his cousin brother and that they are both residents of the same village that is, Lalpani in the East Khasi Hills, District. The exchange of money or that they are communicating with each other on the phone is not an indication that the accused person is involved in the alleged crime since no concrete evidence has been produced by the NCB in this regard.
To support this contention, the learned counsel has referred to the following cases:
The Hon’ble High Court of Kerela, Anal E & Anr. v. State of Kerela, Bail Appl. No. 2776 of 2023, para – 8;
The Hon’ble High Court of Kerela, David Ntemi Kilekamajenga & Anr. v. State of Kerela & Anr., Bail Appl. No. 12346 of 2025, para – 11 & 13;
The Hon’ble High Court of Delhi, Harsh Yadav v. State Govt of NCT of Delhi, Bail Appl. No. 136/2025, para – 7;
The Hon’ble High Court of Himachal Pradesh, Manu Sharma v. State of Himachal Pradesh, Cr. MP (M) No. 240 of 2025, para – 13, 14 & 17.
Therefore, on the basis of what has been submitted, the accused person having no criminal antecedent, prayer for grant of bail with any conditions imposed is hereby made.
Per contra, Dr. N. Mozika, learned DSGI appearing for the respondent/NCB has resisted the submission made on behalf of the accused person and has submitted that facts and circumstances of the case would reveal that detention of the accused person is justified in the light of the seriousness of the offence which involved a seizure of about 1.957 kgs of Psychotropic substance which is a substantial quantity.
The learned DSGI has also submitted that initially, two persons have been arrested in connection with this case and during the course of investigation, three more persons were found to be also involved with the case, however these three could not be apprehended by the NCB and even till the final complaint was filed before the court, they continue to remain untraced or rather they have since absconded.
It is reiterated that on the date the Trial Court has accepted the final complaint and has taken cognizance of the case vide order dated 27.01.2026, the accused person herein is still absconding at that point of time, as such, the contention that he was not given an opportunity to be heard as per the provision of Section 223 BNSS does not arise. In fact, he appeared before the court only on 12.03.2026, on the strength of a bailable warrant of arrest, about one and half months after the said order dated 27.01.2026 was passed and he was remanded to judicial custody accordingly.
The learned DSGI has also pointed out that now the accused person has challenged his detention to NCB custody on the ground that he was not given an opportunity to be heard by the court. However, the said order dated 26.05.2026 granting custody to the NCB has not been assailed before a higher court, even after about four months or so, further the same could not have been done so in a bail application such as the present one, submits the learned DSGI.
As to the role of the accused person herein, the learned DSGI has submitted that investigation would reveal that he was a mediator of the seized Methamphetamine Tablets and evidence of money being transferred to the account of one of the main accused, that is, Shankar Sangma via UPI transactions, including CDR of phone calls made between the two has been found to tie him to the crime.
On the contention of the learned counsel for the petitioner that no summon was ever issued upon the accused person herein, the learned DSGI has submitted that this is not correct, the fact being that summon under Section 67 of the NDPS Act has indeed been issued upon the said accused person, Shri. Ferdinand M. Marak on 19.12.2025 vide NCB F. No. 07/NCB/GZU/Meth/11/2025/175-1 and another summon dated 02.01.2026 vide NCB F. No. 07/NCB/GZU/Meth/11/2025/1822 and yet another summon dated 09.01.2026 vide NCB F. No. 07/ NCB/GZU/Meth/11/2025/1882 has been issued, however, since the said accused person is absconding, the said summons could not be affected.
In view of the explicit provision of Section 37 of the NDPS Act and the seriousness of the offence, it is prayed that this application be rejected and dismissed as devoid of merits.
This Court has considered the submission of the learned counsel for the petitioner and is made to understand that the primary objection to the detention of the accused person in question is that the same has been done so in violation of due procedure of law, contravention of the provision of Section 223 BNSS and an apparent disregard to the constitutional rights of the accused qua Article 21 of the Constitution. This contention was premised on the fact that no summons has been issued or affected upon the said accused person and that he was never given an opportunity of being heard at the time of his arrest.
On perusal of the final complaint filed by the NCB before the Trial Court, copy of which has been annexed with this petition, what is noticed is that the Investigating Officer has remarked that the accused person herein has been absconding since the time investigation was launched. He was thus named as an accused person wanted in connection with the case and his custody was secured only when a bailable warrant of arrest was issued against him, pursuant thereto, on his appearance before the Trial Court, he was accordingly remanded to judicial custody.
It is also seen that in the final complaint a detailed narrative as regard the accused person Shri. Ferdinand M. Sangma has been laid down to show that he is accused of being the mediator of the transaction involving the said seized quantity of Methamphetamine Tablets and that he has entered into criminal conspiracy with the supplier of the said consignment, who were also named accused in the case. Under such circumstances, considering the fact that he was not arrested initially but was arrested only after the final complaint was filed, therefore, it can be said that the provision of Section 223 BNSS cannot be made applicable in his case.
As to the objection to the order of the Trial Court allowing three days’ custody by the NCB when the accused person was already undergoing judicial custody, this contention is also not sustainable under the facts and circumstances of the case that is, that the accused person in question have not yet been thoroughly interrogated or questioned by the NCB after his arrest. The direction for such custody is therefore legitimate. In this regard, it may not be out of place to refer to the case of State through CBI v. Dawood Ibrahim Kaskar and Ors., (2000) 10 SCC 438, wherein at para 10 and 11 of the same a situation of this nature has been explained, the same reads as follows:
“10.In keeping with the provisions of Section 173(8) and the above quoted observations, it has now to be seen whether Section 309(2) of the Code stands in the way of a Court, which has taken cognizance on an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial and sub-section (2) thereof reads as follows:
"309.(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may be a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time:"
11.There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri [1994 Cri LJ 1854 (Bom)] to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are, therefore, of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.”
In view of the above, irrespective of the authorities cited by the learned counsel for the petitioner which are not applicable to the case of the parties herein, this Court at this point of time is convinced that no case for grant of bail has been made out.
Accordingly, this petition is hereby dismissed as devoid of merits and is disposed of. No costs.