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Judgment
This instant application for grant of bail has been filed by the wife of Shri. Ruhul Amin who is an accused, who was arrested in connection with Crl. NDPS Case No. 01/2025 vide NCB Case No. 11 of 2025 under Section 8(c)/22(c)/29 NDPS Act.
Heard Mr. R. War learned counsel for the petitioner who has submitted that this bail application has been preferred on behalf of Shri. Ruhul Amin who has been arrested in connection with the abovementioned case and is now in custody.
It is the further submission of the learned counsel that the accused person came to know of the arrest of two persons that is, Shri. Shankar D. Sangma and Smti. Terina Sangma in connection with the alleged seizure of Methamphetamine Tablets from one vehicle bearing registration No. ML-05- J-7509 (TATA Sumo). Accordingly, a case has been registered as NCB Guwahati Crime No. 11/2025. In course of investigation and interrogation of the arrested persons, the names of some other persons said to be involved in the transaction have also surfaced. The name of the accused person herein that is, Ruhul Amin is one of them.
The accused person herein has immediately approached the Hon’ble Gauhati High Court with a prayer for grant of anticipatory bail which was allowed to the extent that he is to apply for regular bail from the competent court of jurisdiction within 15 days. The accused person then filed a regular bail application before the court of the learned Special Judge (NDPS), the same being taken up on 29.04.2026, prayer made therein was rejected and resultantly, the accused person was remanded to judicial custody.
The learned counsel has also submitted that it may be reminded that when the final complaint was filed by the IO on 27.01.2026 prayer was made to issue Non-Bailable Warrant of Arrest to the accused persons, including the accused person herein. However, no summons was received by the accused person herein as such on 13.02.2026 he could not appear before the court. As has been stated, it was only when he appeared before the court on 29.04.2026 that he was arrested and remanded to judicial custody and also on a prayer made by the NCB for seven days’ custody of the accused person herein, the learned Trial Court had allowed the prayer but has restricted the number of days to three days’ NCB custody.
This, according to the learned counsel is a violation of the legal procedure, particularly the provision of Section 187 BNSS since no formal arrest memo or no formal arrest has been made as far as the accused person herein is concerned and by directing the accused person to NCB custody which amounts to police custody the fundamental rights of the accused person under Article 22(1) of the Constitution has been violated. The case of Asmat Ali v. The State of Assam, Bail Appln./953/2026, Order dated 29.05.2026, para 12 – 20 passed by the Hon’ble Gauhati High Court has been referred to in support of this contention.
Apart from the fact that the due process of law has not been complied with following the arrest and remand to judicial custody of the accused person herein, the learned counsel has also submitted that the accused person has been charged under Section 27A of NDPS Act, that is for allegedly transferring a sum of ₹ 66,500/- (Rupees Sixty-Six Thousand Five-Hundred) only to another co-accused, Abdul Hamid. However, though it is admitted that the said sum of money was transferred to Abdul Hamid who is the own uncle of the accused person, the money is meant for the treatment of the grandmother of the accused person as such transfer of money between relatives cannot be construed as money meant for financing illicit contraband.
The learned counsel has reiterated that in view of the fact that the fundamental right of the accused person has been violated, as far as bail is concerned, even the express provision of Section 37 NDPS Act cannot come in the way of the same being granted to the accused person, the authority in the case of Vihaan Kumar v. State of Haryana (2025) 5 SCC 799, being applicable in this case.
It is prayed that this application may be allowed taking into consideration the fact that the accused person herein is a farmer by profession and having no criminal antecedent with a wife and a minor daughter to support, bail may be granted with any conditions fit to be imposed by this Court.
In reply, Dr. N. Mozika, learned DSGI appearing for the respondent/NCB 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.
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 is a suspected associate supplier of the seized Methamphetamine Tablets and evidence of money being transferred to the account of one of the co-accused, that is, Abdul Hamid via UPI transactions, including CDR of phone calls made between the two have been found to tie him to the crime.
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, particularly contravention of the constitutional rights of the accused qua Article 21 of the Constitution.
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 IO 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, the role of the accused person herein as has been indicated by the learned DSGI is that of an associate supplier as well as financer of the illegal 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, he cannot claim to have been illegally arrested or that there was no arrest at all.
The learned DSGI has also produced copy of the summon vide NCB F. No. 07/NCB/GZU/Meth/11/2025/190 under Section 67 of the NDPS Act issued upon the accused person herein on 20.01.2026, the same being duly received by the accused person on 22.01.2026, therefore, it cannot be said that he is not aware or was not informed of why he was arrested.
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.”
As to the involvement of the accused person, since there are prima facie evidence showing his complicity in the case, admittedly the quantity of the seized Psychotropic substance being huge, that is, of a commercial quantity, the provision of Section 37 of NDPS Act would surely be attracted. The prayer for grant of bail taking this factor into account would only dis-entitle the accused person to any immediate relief.
In the light of what has been observed herein above, this Court is persuaded to disregard the prayer made in this petition.
Accordingly, this petition is hereby dismissed as devoid of merits and disposed of. No costs.