[Cites 12, Cited by 0]
Gauhati High Court
Page No.# 1/6 vs The State Of Assam on 3 December, 2025
Page No.# 1/6
GAHC010240312025
2025:GAU-AS:16555
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3543/2025
TAPESHWAR RAY
S/O LT. RAMKAILASH RAY
R/O WARD NO. 9, MAJHALLI, PS BIDURPAR, DIST VAISHALI, STATE BIHAR
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR D MEDHI, MR. S SARKAR,S YESMIN,MR K THAKUR
Advocate for the Respondent : PP, ASSAM,
:::BEFORE:::
HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA
Advocate for the petitioner : Mr.K. Thakur.
Advocate for the respondent : Mr. R.J. Baruah,
Addl. P.P., Assam.
Date on which judgment is reserved : 26.11.2025.
Date of pronouncement of judgment : 03.12.2025.
Whether the pronouncement is of the : No.
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operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
ORDER (CAV)
1. Heard Mr. K. Thakur, learned counsel for the petitioner. Also heard Mr. R.J.
Baruah, learned Additional Public Prosecutor for the State.
2. This is an application under Section 483 of BNSS, 2023 praying for grant of
bail to the petitioner, namely, Tapeshwar Ray, who was arrested in connection
with NDPS Case No. 61/2025, arising out of Silchar PS Case No. 543/2025 u/s
21(c)/29 of NDPS Act, 1985.
3. The informant of the case lodged an FIR dated 23.05.2025 before the
Officer-in-Charge of Silchar Police Station against the present accused person
stating that on 22.05.2025, police recovered 50 nos. of soap boxes containing
618 grams of suspected heroin from the possession of the petitioner
and accordingly, the petitioner was detained and seizure list was prepared. On
the basis of the aforesaid FIR, Silchar P.S. Case No. 543/2025 under
Section 21(c)/29 of NDPS Act was registered. The investigation has by now
been completed resulting in the charge sheet against the petitioner filed before
the Special Judge, Cachar, Silchar under Section 21(c)/29 where on the principle
ground on which the present application has been preferred is violation of
Section 47 and 48 BNSS concerning furnishing of grounds of arrest to the
arrestee and the relative/friend/nominated person of the accused respectively.
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4. A perusal of the aforesaid notices under Section 47 and Section 47B of
BNSS would clearly show that no grounds of arrest were mentioned in the said
notices, a fact not disputed by the prosecution.
5. The learned counsel for the petitioner has referred to the decision of the
Apex Court in Vihan Kumar Vs. State of Haryana and Another reported in
(2025) SCC OnLine SC 269, wherein it has been held that non-furnishing of
the grounds of arrest in writing to the arrestee as well as his
relative/friend/nominated person amounts to violation of the fundamental right
guaranteed under Article 22(1) of the Constitution of India and the same vitiates
the arrest.
6. Learned Additional Public Prosecutor submits with reference to the order
passed by the learned Magistrate on the date of first production of the
accused dated 23.05.2025, wherein it has been reflected that on being asked
the accused person has stated that his family members are aware of his arrest
and that the accused person has stated that he has been properly informed by
the police regarding the grounds of his arrest and the brief of the instant case.
7. Further, on the date of production he was represented by the Deputy Chief
Legal Aid Defense Counsel as the petitioner/accused had not engaged a lawyer
on his own. It is submitted by learned Additional Public Prosecutor that in view
of the above, it cannot be said that the grounds of arrest has not been
communicated either to the arrestee or to his relative /friend/nominated person
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and therefore, no demonstrable prejudice has been caused to the accused to
the accused.
8. In the recent decision of the Apex Court in Ahmed Mansoor & Others
Vs. The State represented by Assistant Commissioner of Police and
Another decided on dated 14.10.2025 in Criminal Appeal No. 4505/2025, the
Apex Court rejected that the contention of the State that the grounds of arrest
were duly explained by the Court at the time of remand followed by furnishing
of a copy of the same, containing the grounds of arrest to the counsel who
appeared with them and held that the mandate of furnishing the grounds of
arrest at the time of securing the appellants had not been complied with,
entitling the accused to bail.
9. In this case, the Court referred to the decision in Prabir Purkayastha
Vs. State (NCT of Delhi) reported in (2024) 8 SCC 254, wherein the
Supreme Court had held that once the Court has interpreted the provisions of
the statute in context to the constitutional scheme and has laid down that the
grounds of arrest have to be conveyed to the accused in writing expeditiously,
the said ratio becomes the law of the land binding on all Courts in the country
by virtue of Article 141 of the Constitution of India.
10. In view of the aforesaid decision of the Apex Court, it is evident that mere
oral explanation of the grounds of arrest even if accepted to be true would not
be sufficient compliance with the mandate of Article 22(1) and Sections 47/48 of
BNSS as explained by the Apex Court in Vihan Kumar (Supra).
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11. Further, learned counsel for the petitioner has also referred to the decision
in Mihir Rajesh Shah Vs. the State of Maharashtra & Another reported in
2025 INSC 1288, wherein it has been held inter alia that the constitutional
mandate of informing the arrestee of the grounds of arrest is mandatory in all
offences under all statutes including offences under the IPC (now BNS 2023)
and that the same must be communicated in writing to the arrestee in the
language he spoke/understands. It was further stated that in cases where the
Arresting Officer/person is unable to communicate the grounds of arrest in
writing on or soon after the arrest, it be done orally. But the said grounds must
be communicated in writing within a reasonable time and in any case at least
two hours prior to the production of the arrestee for remand proceedings
before the Magistrate.
12. The petitioner was arrested on 23.05.2025 which was on a date
subsequent to the decision of the Apex Court in Vihan Kumar (Supra) and
therefore, it was necessary that the grounds of arrest be communicated in
writing to the arrestee as well as his relative/friend/nominated person and the
Apex Court in Ahmed Mansoor (Supra) interpreting the decision in Pankaj
Bansal Vs. Union of India reported in (2024) 7 SCC 576 which was also
rendered prior to the date of arrest in the present case has held that mere
explanation of the grounds of arrest to the arrestee is not sufficient compliance
with the mandate of the statutory provisions and the constitutional scheme
of things.
13. Having regard to the above, this Court is of the considered view that
the arrest of the petitioner was vitiated and he is entitled to be released on bail.
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14. Accordingly, it is directed that the petitioner named above shall be
released on bail on furnishing a bail bond of Rs.100,000/-with two local sureties
of like amount to the satisfaction of the learned Special Judge, NDPS, Cachar,
Silchar.
15. It is further provided that the petitioner shall regularly participate in the
trial and shall not try to influence the witnesses in any manner.
16. Bail Application stands allowed and disposed of accordingly.
JUDGE
Comparing Assistant
