Gauhati High Court
Page No.# 1/6 vs The Union Of India on 22 August, 2025
Page No.# 1/6
GAHC010128652025
2025:GAU-AS:11268
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1970/2025
PREMPAL SINGH AND ANR
SON OF LATE RAJVEER SINGH
R/O VILL- DAUGAVAN P.O. AND P.S. DIBAL
DIST. BULANDSHAHR, UTTAR PRADESH, PIN-203392
2: RAMU @ RAMU KUSHWAHA
S/O SHRI RAJENDRA SINGH
R/O VILL- DAUGAVAN
P.O. AN DP.S. DIBAL
DIST. BULANDSHAHR
UTTAR PRADESH
PIN-20339
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE SC, NCB
Advocate for the Petitioner : MR. A PAUL, MD. M. ALI
Advocate for the Respondent : SC, NCB,
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BEFORE
HONOURABLE MR. JUSTICE PRANJAL DAS
ORDER
22.08.2025
1. Heard Mr. A. Paul, learned counsel for the petitioners. Also
heard Ms. M. Deka, learned counsel for NCB.
2. By filing this application u/s 483 BNSS, 2023, the
petitioners, namely, 1. Prempal Singh and 2. Ramu @ Ramu
Kushwaha, has sought for bail in connection with NDPS Case
No.24/2021 (corresponding to NCB Crime No.7/2021) under
Sections 8(C), R/W Sections 20(b)(ii)(C)/25/28/29/35 and 54 of
NDPS Act, 1985.
3. After investigation, the accused persons were charge
sheeted and gave rise to NDPS Case No. 24/2021 pending in the
court of learned Special Judge, Rangia in the district of Kamrup.
4. Mr. A. Paul, learned counsel for the petitioners, who fairly
submits that two earlier bail applications of the present accused
persons have been rejected by this Court, mainly on the ground of
applicability of the statutory bar under Section 37 of the NDPS act.
In this petition, the new grounds are by way of defective arrest
procedure in terms of the law laid down by the Hon'ble Supreme
Court in Vihaan Kumar Vs. State of Haryana and Anr., reported in
(2025) 5 SCC 799: (2025) SCC Online SC 269 and Prabir Purkayastha
Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254: (2024) SCC
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Online SC 934.
5. The petitioner's side has contended that except to these
two accused persons, others have all been granted bail. The certified
copy of the notice under Section 50 Cr.PC with regard to the two
accused persons has been annexed with the bail petition as
Annexure-5 and Annexure-6 respectively. Both the notices are
identical and reads as follows -
"It is hereby informed you that you have been arrested in
connection with the aforesaid case which is non-bailable
offence. Therefore, you will be produced before the
Hon'ble Court. You may file application before the Hon'ble
Court."
6. Perused the original copy of the notices as well as
translated version. The memorandum of arrest of the two accused
persons have also been annexed and perused the same. The memo
of arrest is in standard form format with blanks which were filled up
in hand written words mentioning about seizure of ganja and arrest
of the accused.
7. No specific details are mentioned with regard to the
connection of the present accused with the seizure. Similarly, in the
notices under Section 50A Cr.PC given to the family members of the
accused persons, it is stated about seizure of ganja from the truck
bearing registration no. HR-55N-2597 and arrest of the accused. It is
not even mentioned therein as to whether the accused was driving
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or travelling in that vehicle.
8. I have perused the relevant portions of the scanned TCR.
9. The aforesaid nature of the notices under Section 50/50A
Cr.PC at the time of arrest of the accused persons would not satisfy
the test laid down by the Hon'ble Supreme Court in Vihaan Kumar
(Supra) and Prabir Purkayastha(Supra). The contents of the
memorandum of the arrest also do not meet the standards in my
considered view in terms of the settled stipulations by the Hon'ble
Apex Court.
10. It has been held that whenever a contention is made about
non-compliance with these procedural requirements, the prosecution
has to satisfy the Court regarding the same, if they have been
complied. In this regard, the prosecution in the instant case has not
been able to place any materials contradicting the submitted
documents or showing in any other manner that the stipulated
standards were met at the time of the arrest of the accused persons.
11. In Prabir Purkayastha (Supra) and Vihaan Kumar(Supra), it
has been held that grounds of arrest should contain specific points
with regard to the accused in question indicating as to why he has
been arrested so that he knows about the same and is also
facilitated in preparing his defence and applying for bail.
12. It has been held that such particulars are also required to
be conveyed to the family member in the other notice for their
information and needful on their part. After these judgments, it is
now the settled position that unless this is done, the arrest
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procedure would constitute violation of the provisions of Article
22(1) of the Constitution of India and the consequent arrest and
subsequent detention thereof would be rendered untenable and
entitle the accused person to be granted bail.
13. In para 26.6 of Vihaan Kumar (Supra), it also been held that
if the accused is found to be entitled to bail on account of such
violations of constitutional provisions, any statutory restrictions or
bar on grant of bail would also not come in the way.
14. Consequently, coming back to the facts of the instant case,
the notices under Section 50 Cr.PC do not at all meet the
requirements of the law in terms of Vihaan Kumar(Supra). The
memorandum of arrest also falls short of the requisite details, as
also the notice to family member under Section 50 A Cr.PC.
15. Therefore, in terms of the principles laid down in Vihaan
Kumar(Supra), the arrest of the accused persons on 28.03.2021 did
not fulfill the requirement of Article 22(1) of the Constitution of
India, as laid down and therefore, the accused persons have become
entitled to be granted bail at this stage.
16. Accordingly, the above-named accused persons are allowed
to go on bail of Rs.75,000/- (Rupees Seventy Five Thousand) only
each with one surety each of like amount subject to the
satisfaction of the concerned learned court with following conditions:
(i) That the accused persons shall not abscond;
(ii) That the accused persons shall be available during
the remaining trial;
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(iii) That the accused persons shall not indulge in any
illegal activities; including any activities of peddling illegal
drugs;
(iv) That the accused persons shall not hamper or tamper
with evidence in any manner.
17. Violation of bail conditions might entail cancellation of the
bail.
18. With the above observations, this bail petition stands
allowed and stands disposed of.
JUDGE
Comparing Assistant
