Akku Ali @ Akur Ali Akanda vs The State Of Assam
2025 Latest Caselaw 2541 Gua

Gauhati High Court

Akku Ali @ Akur Ali Akanda vs The State Of Assam on 7 August, 2025

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GAHC010160462025




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



                                Case : Bail Appln./1967/2025

             AKKU ALI @ AKUR ALI AKANDA
             S/O LATE AIZ ALI AKOND
             R/O VILL- NAYA PARA PART-II
             P.S. MATIA
             DIST. GOALPARA
             ASSAM


              VERSUS

             THE STATE OF ASSAM
             REPRESENTED BY THE PP
             ASSAM


             ------------
             Advocate for : MR. S ISLAM
             Advocate for : PP
             ASSAM appearing for THE STATE OF ASSAM



                                    BEFORE
                  HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                             ORDER

Date : 07.08.2025

1. Heard Mr. S. Islam, the learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, the learned Additional Public Prosecutor, Assam, appearing for the State respondent.

2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has been filed by the petitioner, namely, Akku Ali @ Akur Ali Akanda, who has been arrested on 20.02.2025 in connection with Mornoi P.S. Case No. 17/2025 under Section 123 of BNS, 2023 read Page No.# 2/4

with Sections 22(C)/ 29 of the N.D.P.S. Act, 1985.

3. The gist of accusation in this case is that on 20.02.2025, one Sri Sarat Chandra Nath, S.I., had lodged an FIR before the Officer-In-Charge of Mornoi Police Station, inter alia, alleging that on receipt of information from a reliable source regarding transportation of suspected drugs in the Maruti Swift Dzire bearing Registration No. AS-01-FB-5499, a police team was constituted at a nacka checking at Harimura Borjull. During the Naka checking, the aforesaid vehicle was intercepted and three accused persons (including the present petitioner) were apprehended therefrom. During search of the said vehicle, 706 Nos. of bottles of Cough Syrup containing Codeine Phosphorous were recovered.

4. The learned counsel for the petitioner has submitted that the petitioner is seeking bail in this case mainly on the ground that no grounds of arrest were communicated to him at the time of his arrest or to his family members when he was arrested. The learned counsel for the petitioner submits that though notice under Section 47 was served upon the petitioner, however, it did not contain any ground for his arrest or the basic facts which necessitated the arrest of the petitioner. He submits that the fundamental rights of the petitioner guaranteed under Article 22(1) of the Constitution of India has been violated in this case as no ground of arrest was communicated to him as clarified by the Apex Court in the case of Vihaan Kumar Vs. State of Haryana and anr., reported in (2025) 5 SCC 799.

5. The learned counsel for the petitioner submits that in the aforesaid case the Apex Court has observed that when there is violation of the Constitutional requirement of furnishing the ground of arrest to an arrestee at the time of his arrest, such arrest itself become illegal and on that ground, he may be allowed to go on bail.

6. On the other hand Mr. P.S. Lahkar, learned Public Prosecutor has produced the case diary of Mornoi P.S. Case No. 17/2025 and has vehemently opposed the grant of bail to the petitioner on the ground that the quantity of contraband seized in this case is of commercial quantity and therefore embargo 37 of the NDPS Act is applicable in this case. He also relied upon the judgment of the Apex Court in the case of Kasireddy Upenderreddy Vs. State of Andhra Pradesh and others reported in (2025) INSC 768, has submitted the if the petitioner is told at the time of his arrest as to why he has been arrested it would be sufficient compliance of the mandate of Article 22(1) of the Constitution of India. He submits that in view of the aforesaid judgment of the Apex court there is no requirement of furnishing the ground of arrest, in writing, if the petitioner has been otherwise told about the said grounds.

7. The learned Addl. Public Prosecutor also submits that in the case diary, the Investigating Officer has made an endorsement to that effect that the petitioner was communicated with the ground of arrest at the time of his arrest. He also submits that all the grounds for which the petitioner was arrested has been communicated as it would be clear from the perusal of the said endorsement in the case diary. He, therefore, prays for rejecting the bail of the petitioner. The learned Addl. P.P. has also submits that in the case of Kasireddy Upenderreddy (Supra), the Apex Court has held that for the purposes of complying with the mandate of Article 22(1), it is not necessary to furnish full details of the offence alleged against the arrestee, it would be sufficient compliance if sufficient information has been given to him regarding the grounds of arrest.

8. I have considered the submissions made by the learned counsel for both the parties and have gone through the case record which is produced by the learned Addl. Public Prosecutor.

9. In this case, the petitioner is mainly seeking bail on the ground that no grounds of arrest were mentioned in the notice when he was arrested. On perusal of the said notice, it appears that apart from Police Station Case Number, i.e. Mornoi P.S. Case No. 17/2025 as well as the penal provisions i.e. under Sections 123 BNS and Sections 22(C)/29 of the NDPS Act, no other information was Page No.# 3/4

communicated to him, which would indicate a ground for which the petitioner was arrested in the aforesaid case. It also appears that apart from other facts, no basic facts which necessitated the arrest of the petitioner, has been mentioned therein.

10. In the case of Kasireddy Upenderreddy (Supra), the Apex Court has observed that the petitioner must be communicated about the acts done by him, which amounts to offence, unless the same is done, it would not amount to communicating the grounds of arrest. Therefore, it is no longer res integra that after the judgment of the Apex Court in the case of Pankaj Bansal Vs. Union of India and ors, reported in (2024) 7 SCC 576, Prabir Purakayastha Vs. State (NCT, Delhi), reported in (2024) 8 SCC 254 as well as Vihaan Kumar Vs. State of Haryana and anr., reported in (2025) 5 SCC 799 that the grounds of arrest are to be communicated to an arrestee, in writing, as soon as possible after his arrest. If the same is not done, it would be violation of his fundamental rights guaranteed under Article 22 (1) of the Constitution of India and in such a case arrest itself become vitiated and the petitioner would be entitled to get bail on that ground.

11. The submission made by the learned Addl. Public Prosecutor to the effect that as in the case of Kasireddy Upenderreddy (Supra), the Apex Court has observed that at the time of arrest in order to inform the arrestee that he has committed such an allux "must be told" about the acts done by him, which amounts to offence would mean that the arresting authority not to be communicated the ground of arrest in writing, is wrong way of reading the judgment as in the said judgment there is no indication that grounds of arrest are not required to be communicated in writing.

12. It also appears that the judgment of Kasireddy Upenderreddy (Supra) has been rendered after the judgment of Pankaj Bansal (Supra) and Probir Purakayastha (Supra). This court is of the considered opinion that there is nothing in the judgment of Kasireddy Upenderreddy (Supra) which would indicate that the Supreme Court has taken a contrary view from that which it took in the case of Pankaj Bansal (Supra), Prabir Purakayastha (Supra) and Vihaan Kumar (Supra) wherein it has been clarified that the ground of arrest are to be communicated to an arrestee, in writing, as soon as he is arrested and any violation of the same it would amount to violation the fundamental rights guaranteed under Article 22(1) of the Constitution of India to such an arrestee.

13. The submissions made by the learned Addl. Public Prosecutor, referring to the observations made in the case of Vihaan Kumar (Supra) that if the police effecting the arrest is wanting to prove the communication of grounds of arrest only on the basis of grounds of arrest it would be sufficient to show that an endorsement to that effect has been made in the case diary, cannot be accepted as in the above said judgment the Apex Court has clarified that even if assuming that in the case of police regarding requirement of Article 22(1) of the Constitution of India is to be accepted based on an entry into the case diary, there must be a contemporaneous record which records as what are the grounds of arrest. However, in the instant case, there is no contemporaneous record apart from the case diary is there to show that what the grounds of arrest were for arresting the present petitioner.

14. Thus, this court intends to clarify that the proposition of law regarding the necessity of furnishing the grounds of arrest, in writing, has been settled by the aforementioned judgments of the Apex Court in the case of Pankaj Bansal (Supra), Prabir Purakayastha (Supra) and Vihaan Kumar (Supra). Any attempt to give any other interpretation to the provisions contained in Article 22(1) of the Constitution of India as well as Section 47 of the BNSS, would amount to diluting the constitutional mandate as provided under Article 22 (1) as has been clarified by the Apex Court.

15. In view of the above discussions, this court is of the considered opinion that in the instant case, notice served on the petitioner under Section 47 of the BNSS is devoid of any ground of arrest and accordingly, the constitutional fundamental right guaranteed under Article 22(1) of the Constitution of Page No.# 4/4

India has been violated in this case and on that ground the petitioner is entitled to get bail. Accordingly, the petitioner named above is hereby allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) with a suitable surety of like amount, subject to the satisfaction of the learned Special Judge, Goalpara with the following conditions:-

(i) the petitioner shall not leave the territorial jurisdiction of the learned Special Judge (NDPS)-cum-Sessions Judge, Goalpara, without obtaining prior written permission from the said authority till disposal of the said NDPS Case;

(ii) the petitioner shall regularly attend the trial before the learned Special Judge (NDPS)-cum-Sessions Judge, Goalpara in the said NDPS Case on the date it is fixed till conclusion, and shall cooperate with the said Special Court during the trial of the said NDPS Case;

(iii) the petitioner shall not hamper and/or temper of the evidence of the case,

(iv) the petitioner shall not directly or indirectly make any inducement, threat or promise to the informant or to any other persons who may be acquainted with the facts of the case so as to dissuade such person from disclosing such facts before the trial Court; and.

(v) the petitioner shall not indulge himself in any such criminal activities including the possession or procurement, transportation and selling of any such NDPS items.

16. With the above observations, this bail application is disposed of.

JUDGE

Comparing Assistant