Gauhati High Court

Page No.# 1/8 vs The State Of Assam on 1 April, 2025

                                                                        Page No.# 1/8

GAHC010068672025




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./993/2025

            AKHERUZZAMAN AHMED AND 2 ORS
            S/O BASHER ALI
            R/O VILL- TUMNI SIMLAKANDI
            P.S. SOUTH SALMARA
            DIST.SOUTH SALMARA MANKACHAR, ASSAM,PIN-783127

            2: NOOR ALOM AHMED @ NUR ALOM AHMED
             S/O PASHAN ALI
            R/O VILL- TUMNI SIMLAKANDI
            P.S. SOUTH SALMARA
            DIST.SOUTH SALMARA MANKACHAR
            ASSAM
            PIN-783127

            3: MAHABUR RAHMAN AHMED
             S/O GIASUDDIN AHMED
            R/O VILL- TUMNI SIMLAKANDI
            P.S. SOUTH SALMARA
            DIST.SOUTH SALMARA MANKACHAR
            ASSAM
            PIN-78312

            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR H R A CHOUDHURY, MR. A KHALEK,MR. A Z AHMED

Advocate for the Respondent : PP, ASSAM,
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                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                       ORDER

Date : 01.04.2025

Heard Mr. H. R. A. Choudhury, learned Senior Counsel assisted by Ms. R. Deka, learned counsel for the petitioners. Also heard Mr. K. K. Das, learned Additional Public Prosecutor for the State respondent.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioners, who have been arrested in connection with South Salmara P.S. Case No. 31/2025, under Sections 61(2)/308(2)/303(2)/111(i)(ii)(2)(b) of BNS read with Section 66 (D) of IT Act.

3. It is submitted by Mr. Choudhury, learned Senior Counsel for the petitioners, that the present accused/petitioners are innocent and they are no way connected in the alleged offence. However, the accused/petitioner Nos. 1 & 2 were arrested on 04.03.2025 and for last 22 days, they are behind the bar, and the accused petitioner No. 3 was arrested on 07.03.2025 and for last 25 days, he also behind the bar. Further he submitted that though the present accused/petitioners were earlier on police remand, but thereafter they were never asked for any remand nor interrogated in the jail premises and they are behind the bar for considerable period and thus, the I.O. got sufficient opportunity for his custodial interrogation.

4. Mr. Choudhury, learned Senior Counsel, apart from the above submission, also submitted that while furnishing Arrest Memo as well as issuing Notices Page No.# 3/8

under Sections 47 of BNSS, no grounds of arrest were mentioned which is mandatorily required and non-compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to them at the time of their arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself.

5. In support of his submissions, Mr. Choudhury, learned Senior Counsel for the petitioner, has cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

6. Accordingly, Mr. Choudhury submitted that non-mentioning of grounds of arrest while issuing the Arrest Memo or Notice under Section 47 of BNSS is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioner is entitled to bail.

7. Mr. Das, learned Additional Public Prosecutor, submitted in this regard that during investigation, the I.O. collected sufficient incriminating materials against the present accused/petitioner. He further submitted that case is also registered Page No.# 4/8

under Section 61 (2) of BNS, which is criminal conspiracy, and the other allegations brought against the present accused/petitioners are serious in nature and it is an organized crime and thus he submitted that this is not at all a fit case to grant bail to the accused/petitioners only considering the length of detention of the present accused/petitioner. More so, he submitted that the case is still under the process of investigation and hence, he raised objection in granting bail to the accused/petitioners.

8. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Arrest Memos and Notices under Sections 47 of BNSS, issued to the present accused/petitioners. It is accordingly seen that while issuing the Notices, though the name and the address of the accused/petitioners along with the case number as well as the Sections under which they were being arrested are mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notices. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioners or to their family members at the time of their arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police.

9. It is the contention of the petitioners that non-communication of the grounds of arrest is in violation of Section 47 of BNSS rendering the arrest and subsequent remand of the accused/petitioners invalid. The accused/petitioners have the fundamental and statutory right to be informed about the grounds of Page No.# 5/8

arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non- supply of written grounds of arrest to the arrested accused/petitioners would vitiate the arrest even if the case has been charge-sheeted.

10. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned Senior Counsel for the petitioner, has held in paragraph No. 19 of the judgment as under:

"19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.

21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590committed at the time of arresting the accused and the grant of initial police custody remand to the accused.

48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase 'reasons for arrest' and 'grounds of arrest'. The 'reasons for arrest' as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer. These reasons would commonly apply to any person arrested Page No.# 6/8

on charge of a crime whereas the 'grounds of arrest' would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the 'grounds of arrest' would invariably be personal to the accused and cannot be equated with the 'reasons of arrest' which are general in nature."

11. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held has under:

"14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second."

12. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memos and Notices issued to the present accused/petitioners under Section 47 of BNSS and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 47 BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Page No.# 7/8

Constitution of India.

13. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering their bail application at this stage as the investigation is still under progress. However, considering the fact that the grounds of arrest were not communicated to the petitioners or mentioned in the Arrest Memos as well as in the Notices issued to the present accused/petitioners under Section 47 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

14. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Sessions Judge, South Salmara, Mankachar, the accused/petitioners, namely, (i) Akheruzzaman Ahmed, (ii) Noor Alom Ahmed @ Nur Alom Ahmed &

(iii) Mahabur Rahman Ahmed, be enlarged on bail, subject to the following conditions:

(i) that the petitioners shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Case;

(ii) that the petitioners shall not, directly or indirectly, make any Page No.# 8/8

inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;