Yahiya Khan Vs the State of Assam

Heard Mr. BK Mahajan, learned counsel appearing for the accusedapplicant. Also heard Mr. RJ Baruah, learned Additional Public Prosecutor appearing for the State respondent.

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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

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registered under Sections 22(C)/25/29 of the NDPS Act, 1985.

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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-MC2851 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.

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Mr. Mahajan, learned counsel appearing for the accused – applicant

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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.

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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

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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.

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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.

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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

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Judicial Magistrate, Sribhumi, the same is not disputed him.

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The Hon’ble Supreme Court in the case of Niranjan Singh (supra) in paragraph 7 of the case as held as under:

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“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.”

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The Hon’ble Supreme Court in the case of Subhash Sharma (supra) in paragraphs 4, 6 & 8 of the case held as under:

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“4. In paragraph 10 of the impugned judgment, the High Court has recorded factual findings which read thus:

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‘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

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held 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.’

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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.

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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

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of 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.".

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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.

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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 nonproduction of the accused – applicant within a period of 24 hrs of his arrest before the nearest Magistrate.

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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.

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Before parting, this Court would like to point out that though the huge

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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.

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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: -

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(i) That the accused-applicant shall appear before the Trial Court as and when required;

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(ii) The accused-applicant shall not hamper or tamper with any evidence or influence any witnesses connected with the case.

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Accordingly, the instant bail application is disposed of as allowed.

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TCR so received to be sent back.

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JUDGE

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Comparing Assistant

Yahiya Khan v. the State of Assam

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Yahiya Khan v. the State of Assam

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