Ashraful Islam @ Asharful Islam vs The State Of Assam
2025 Latest Caselaw 1114 Gua

Gauhati High Court

Ashraful Islam @ Asharful Islam vs The State Of Assam on 18 July, 2025

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GAHC010100812025




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

                               Case No. : Bail Appln./1568/2025

            ASHRAFUL ISLAM @ ASHARFUL ISLAM
            S/O- ASMOT ALI.
            VILL.- SALKATA CHINABARI,
            P.O- AND P.S.- FAKIRGANJ.
            DIST.- DHUBRI, ASSAM.
            PIN-783330

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP ASSAM



Advocate for the Petitioner   : MR. M R KHANDAKAR,

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 18.07.2025

1. Heard Mr. M. R. Khandakar, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor.

2. This application under section 483 BNSS, 2023 has been filed by the petitioner, namely, Ashraful Islam @ Asharful Islam, who has been detained behind the bars since 16.09.2023 (for last 1 year 10 months) in connection with Special Case Page No.# 2/5

No. 333/2023 arising out of Fakirganj P.S. Case No. 150/2023 under Section 22(c) of NDPS Act, 1985 pending in the Court of learned Additional Sessions Judge, Dhubri.

3. The gist of accusation in this case is that on 16.09.2023, one Kundan Rabi Das, SI of Police, had lodged an FIR before the Officer-in-charge of Fakirganj Police Station, inter alia, alleging that an information was received through reliable sources that a large quantity of narcotic drugs and psychotropic substances would be transported by an unknown person in a Bajaj Pulsar motorbike bearing Registration No. AS-17-N-8119 from Salkata Bazar towards Phulbari. Accordingly, a police team was constituted and a naka checking was arranged. During checking, the aforesaid motorcycle was intercepted and the petitioner who was riding the said motorcycle was apprehended.

4. It is also alleged in the FIR that before the petitioner could be arrested, he threw away the plastic bag which he was carrying. However, same was recovered and it was found that in the said plastic bag, 672 grams of suspected capsules containing Tramadol were found.

5. The learned counsel for the petitioner has submitted that he has filed this application for bail mainly on two counts, firstly, on the ground of prolonged incarceration as well as o the ground of non-disclosure of ground of arrest to the petitioner when he was arrested in the above noted case.

6. The learned counsel for the petitioner has submitted that though the notice under Section 50 of the Code of Criminal Procedure, 1973 was served to the petitioner on 16.09.2023 i.e., on the date of his arrest. However, same does not contain the grounds of arrest. It only mentions about the case number in which the arrest was made and the penal provisions involved in that case. He submits that non-furnishing of the grounds of arrest is a violation of the fundamental rights of the petitioner guaranteed under Article 22(1) of the Constitution of India and in support of his submission, he has cited the ruling of the Apex Court in the case of "Prabir Page No.# 3/5

Purkayastha Vs. State (NCT of Delhi)" reported in "(2024) 8 SCC 254" as well as the case of "Vihaan Kumar Vs. State of Haryana" reported in "2025 SCC OnLine 269" .

7. The learned counsel for the petitioner submits that the violation of the fundamental rights guaranteed under Article 22(1) of the Constitution of India would outweigh the fetters imposed by Section 37 of the NDPS Act, 1985 and on that count, the petitioner is entitled to get bail.

8. On the other hand, the learned Additional Public Prosecutor has cited the Judgment of the Apex Court in the case of "Pankaj Bansal Vs. Union of India"

reported in "(2024) 4 SCC 576" as well as the judgments of the Apex Court in the case of "Ram Kishor Arora Vs. Directorate of Enforcement" reported in "(2024) 7 SCC 599" and has submitted that the requirement of furnishing grounds of arrest in writing is applicable only from the date of the judgment of the Apex Court in the case of "Pankaj Bansal Vs. Union of India" (supra) as in the said judgment, the very use of word "henceforth" implied that the requirement of furnishing grounds of arrest in writing to an arrested person as soon as after his arrest was not mandatory or obligatory till the date of the said judgment and, therefore, he opposes the grant of bail to the petitioner.

9. I have considered the submissions made by the learned counsel for both sides and have gone through the gone through the scanned copy of the records of Special Case No. 333/2023, which was requisitioned in connection with this case.

10. In the instant case, the petitioner has been detained behind the bars for more than one year ten months. However, the trial has not yet culminated.

11. The Apex Court in several of its ruling has observed that prolonged incarceration outweighs the fetters imposed by Section 37 of the NDPS Act, 1985. Hence, if the court comes to a finding that incarceration of the petitioner is long enough and trial has not been culminated with there being no fault on the part of the petitioner, he would be entitled to get bail on the ground of violation of his Page No.# 4/5

fundamental rights guaranteed under Article 21 of the Constitution of India on account of prolonged incarceration.

12. Moreover, in the instant case, on perusal of the notice under Section 50 Cr.P.C. served on the petitioner on the date of his arrest, it appears that same does not contain the basic facts which necessitated his arrest in connection with the Fakirganj P.S. Case No. 150/2023.

13. The said notice only contains the police station case number and the penal provisions involved in the case. Nothing apart from that regarding the facts of the case are mentioned in the said notice.

14. Even if the submission of the learned Additional Public Prosecutor that there is no requirement of furnishing of written grounds of arrest in a case where arrest was made before the delivery of judgment of the Apex Court in the case of Pankaj Bansal Vs. Union of India" (supra) is considered, it is the duty of the prosecution to show that grounds of arrest were furnished to the petitioner at the time of his arrest. However, in this instant case, apart from the notice under Section 50 of the Cr.P.C., which was served on the petitioner, there is nothing on record to show that the grounds of arrest were communicated to the petitioner at the time of his arrest.

15. As already discussed hereinbefore, the notice issued under Section 50 of the Cr.P.C., 1973 to the petitioner does not contain any grounds of arrest, this Court is, therefore, of the considered opinion that in the instant case, there has been violation of fundamental rights of the petitioner guaranteed to him under Article 21 as well as Article 22(1) of the Constitution of India and as such the embargo provided under Section 37 of the NDPS Act, 1985 is outweighed. The petitioner is, therefore, entitled to get bail in this case.

16. Accordingly, the petitioner is allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand) only with one surety of like amount to the satisfaction of the learned Additional Sessions Judge, Dhubri with following conditions:-

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i. That the petitioner shall co-operate in the trial of Special Case No. 333/2023, which is pending in the Court of the learned Additional Sessions Judge, Dhubri.

ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;

iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner;

iv. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit her leave address and contact details during such leave before the Trial Court; and

17. This bail application is, accordingly, disposed of.

JUDGE

Comparing Assistant