Page No.# 1/13 vs Union Of India
2025 Latest Caselaw 7 Gua

Gauhati High Court

Page No.# 1/13 vs Union Of India on 1 April, 2025

                                                                       Page No.# 1/13

GAHC010031922025




                                                                  2025:GAU-AS:3826

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

                                Case No. : Bail Appln./434/2025

            SRI PRAMOD KUMAR
            SON OF- SRI SHYAM NARAYAN RAY, RESIDENT OF- DARIYAPUR, POST
            OFFICE- FATUHA, POLICE STATION- FATUHA, DISTRICT-PATNA, BIHAR-
            803201



            VERSUS

            UNION OF INDIA
            REPRESENTED BY THE NARCOTICS CONTROL BUREAU, GUWAHATI
            ZONAL UNIT, GUWAHATI



Advocate for the Petitioner   : MR. N N B CHOUDHURY, MS. K DEY

Advocate for the Respondent : SC, NCB,




                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                          ORDER

Date : 01.04.2025

Heard Mr. N. N. B. Choudhury, learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent/Union of India.

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2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 43/2023, under Section 8(c) read with Section 20(b)(ii)(C)/29/35/54 of NDPS Act, arising out of NCB Crime No. 10/2023, pending before the Court of learned Special Judge, Kamrup, Amingaon.

3. Scanned copy of the case record has already been received. Perused the same. Heard both sides.

4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from his conscious possession. He got arrested in connection with this case only on the basis of the statement of the co-accused recorded under Section 67 of NDPS Act. However, it is the settled position that the statement of the co-accused or the voluntary statement recorded under Section 67 of the NDPS Act is not admissible at the time of trial or that cannot be the basis for conviction as laid down by the Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1], wherein it has been held that the statement of the co-accused person recorded under Section 67 NDPS Act is not tenable in the eye of law and it cannot be the basis of the conviction.

5. Mr. Choudhury further submitted that the present accused/ petitioner was though arrested on 23.06.2024, but he was produced before the Magistrate on 24.06.2024, after 24 hours of arrest, which is in violation of Article 22(2) of the Constitution of India, and for last 1 (one) year, 9 (nine) months and 9 (nine) Page No.# 3/13

days, he has been in custody. The charge-sheet was filed on 19.12.2023, but till date, out of 10 (ten) numbers of witnesses, only 4 (four) witnesses are being examined by the prosecution and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail.

6. In that context, Mr. Choudhury also relied on following decisions:

(i) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC OnLine SC 2068]

(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022]

(iii) Zakirul Islam @ Md Zakirul Islam @ Zakir Vs. The State of Assam [Special Leave to Appeal (Crl.) No. 3632/2024, dated 15.07.2024]

(iv) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023 SCC OnLine SC 352]

(v) Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar [(1980) 1 SCC 81]

(vi) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109]

(vii) Chitta Biswas @ Subhas Vs. The State of West Bengal [SLP(Crl.) No. 8823, decided on 07.02.2022]

(viii) Jarnail Singh Vs. State of Punjab [Special Leave to Appeal (Crl.) No9s). 14867/2024] Page No.# 4/13

(ix) Joydeb Mandal Vs. The Union of India [Bail Appln. No. 627/2025, decided on 19.03.2025]

(x) Anil Yadav Vs. Union of India [Bail Appln. No. 434/2024, decided on 03.12.2024]

7. Mr. Choudhury, by filing an additional affidavit, further submitted that the grounds of arrest were also not mentioned in the Notice issued to the present petitioner under Section 50 Cr.P.C./Section 47 BNSS, which is mandatorily required and non-compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He further submitted that the accused/petitioner was arrested on 23.06.2024 and was remanded for judicial custody on 24.06.2024, but due to non-mentioning of grounds of arrest in the Notice under Section 50 Cr.P.C., the arrest and the remand itself is illegal. 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 him at the time of his 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.

8. In this context also, Mr. Coudhury, learned counsel for the petitioner, 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.

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9. Mr. Choudhury also submitted that though in the case of commercial quantity, the rigor of Section 37 NDPS Act follows, but in cases where there is violation of the constitutional provision as mandated under Articles 21 & 22 of the Constitution of India, the statutory restriction will not affect the power of the Court to grant bail in such circumstances. More so, non-mentioning of grounds of arrest while issuing the Arrest Memo or Notice under Section 50 Cr.P.C. 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.

10. Ms. Deka, learned counsel appearing on behalf of the respondent/NCB, submitted in this regard that during investigation, the I.O. collected sufficient incriminating materials against the present accused/petitioner and as per the role played by the present accused/petitioner, which is reflected in the Charge- Sheet, it is seen that he is the person who asked the other 2 (two) co-accused persons to bring Ganja from Tripura and during investigation, the call details were already recorded which also shows the direct connection of the present accused/petitioner with other accused persons as well as his involvement in the present case. She further submitted that the I.O. has to investigate the case on the basis of the statement of the co-accused in absence of any other materials available before him and during investigation only, it has come out that the present accused/petitioner is involved in the alleged offence. She further submitted that the case of Tofan Singh (supra) does not bar the Investigating Agency to proceed with the investigation on the basis of statement of the co- accused or on the basis of the statement recorded under Section 67 NDPS Act.

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The charge was framed on 03.04.2024 and till date, already 4 (four) numbers of witnesses are being examined by the prosecution and therefore, she submitted that this is not at all a fit case to grant bail to the accused/petitioner only considering the length of detention of the present accused/petitioner. She also submitted that there may not be any written communication for grounds of arrest, but from the materials available in the case record, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, she raised objection in granting bail to the accused/ petitioner.

11. Ms. Deka further relied on a decision of Hon'ble Supreme Court passed in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 0 Supreme(SC) 104], wherein it is held that " if a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be question as being violative of Article 21 since the same is authorized by law."

12. Ms. Deka further submitted that while dealing with a case of NDPS Act, the object and purpose of the Act has to be considered and if such kind of offender is allowed to go on bail, the very purpose and object of the Act itself will be frustrated. In that context, she also relied on a decision of Hon'ble Supreme Court passed in the case of Narcotics Control Bureau Vs. Kashif, reported in 2024 0 Supreme(SC) 1264, and emphasized on paragraph No. 39 of the judgment, which reads as under:

"39. The upshot of the above discussion may be summarized as under:

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(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature.

Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

13. Accordingly, Ms. Deka submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed Page No.# 8/13

such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, she raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage.

14. 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 Notice issued to the present accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his 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.

15. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding to Section 47 of BNSS, rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of 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 Page No.# 9/13

arrest to the arrested accused/ petitioner would vitiate the arrest even if the case has been charge-sheeted.

16. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned 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 Page No.# 10/13

the Investigating Officer. These reasons would commonly apply to any person arrested 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."

17. 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."

18. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 of Cr.P.C. and except the name, address Page No.# 11/13

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 50 of Cr.P.C., it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases, in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider her bail application in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act.

19. More so, the Hon'ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon'ble Supreme Court in paragraph No. 16 of the said judgment has held as under:

"16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22."

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20. In the same time, it also cannot be denied that the accused/petitioner is behind the bar for more than 1 (one) year, 9 (nine) months and 9 (nine) days from the date of his arrest and till then, the prosecution has been able to examine only 4 (four) witnesses out of 10 (ten) numbers of listed witnesses and it also cannot be denied that to examine the remaining witnesses, the prosecution may take a considerable period for completion of the trial.

21. In view of the entire facts and circumstances as discussed above, viz-a-viz non-mentioning of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 Cr.P.C., and also considering the period of incarceration already undergone by the accused/petitioner, i.e. 1 (one) year, 9 (nine) months and 9 (nine) days, as well as the considering the view expressed by the Hon'ble Supreme Court in the case laws referred to hereinabove, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

22. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Kamrup, Amingaon, the accused/petitioner, namely, Shri Pramod Kumar, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Special Judge, Kamrup, Amingaon, on each and every date to be fixed by the Court;

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(ii) that the petitioner shall not, directly or indirectly, make any 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;

(iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge, Kamrup, Amingaon; and

(iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Kamrup, Amingaon, without prior permission.

23. In terms of above, this bail application stands disposed of.

JUDGE

Comparing Assistant