Gauhati High Court
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GAHC010043242025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./612/2025
SRI PABITRA KHUDAL AND ANR
S/O LATE BASU KHUDAL, RESIDENT OF SIRAJULI MAILA ALI, P.S.
DHEKIAJULI, DIST. SONITPUR, ASSAM PIN-784110
2: SRI DIPANKAR DAS
S/O NIRANJAN DAS
RESIDENT OF MANUHMARI SANTIPUR
P.S. DHEKIAJULI
DIST. SONITPUR
ASSAM PIN 78411
VERSUS
THE STATE OF ASSAM
REP BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. A A R KARIM, Ms. R. R. BORAH
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 18.07.2025
Heard Mr. A. A. R. Karim, learned counsel for the petitioner. Also heard Mr. B.
Sarmah, learned Additional Public Prosecutor.
2. This application under Section 483 of the BNSS has been filed by the
petitioners, namely Sri. Pabitra Khudal and Sri Dipankar Das, who are detained
behind the bars since 14.09.2024 ( for last more than 10 months) in connection
with Chariduar P. S. Case No. 154/2024 under Section 20(b)(ii)(C) of the NDPS
Act,1985 corresponding to Special NDPS Case No. 114/2024 pending before the
Court of Special Judge, NDPS, Sonitpur, Tezpur.
3. Learned counsel for the petitioners has submitted that the petitioners have
approached this Court seeking bail mainly on the ground of violation of their
fundamental rights guaranteed under Article 22(1) of the Constitution of India as
at the time of their arrest on 14.09.2024, no grounds of arrest were furnished to
them.
4. Learned counsel for the petitioners has submit that though the notice under
Section 47 of the BNSS were served on both the petitioners on that day, however it
did not contain the grounds of arrest or any basic facts which necessitated their arrest
in connection with the Chariduar P. S. Case No. 154/2024. In support of his
submission, learned counsel for the petitioner has relied upon the Judgment of the
Apex Court in the Case of "Vihaan Kumar v. State of Haryana And Another", reported in "2025
SCC OnLine SC 269"
5. On the other hand, learned Additional Public Prosecutor, has submitted that in
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this case the contrabands seized is of commercial quantity and, therefore,
apparently the embargo of under Section 37 of the NDPS Act,1985 is applicable.
However, he fairly submits that the notice under section 47 of BNSS, which were
served to both the petitioners at the time of their arrest does not contain any
grounds of arrest therein.
6. I have considered the submissions made by learned counsel for both sides
and have gone through the scanned copies of the case records of NDPS Case No.
114/2024 which was requisitioned in connection with this case.
7. The Apex Court in the case of Vihaan Kumar Vs. State of Haryana (Supra) as
observed as follows:
"21. An attempt was made by the learned Senior Counsel appearing for the first
respondent to argue that after his arrest, the appellant was repeatedly remanded to
custody, and now a charge-sheet 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".
8. From above observation of the Apex Court, it is apparent that at the time of
arresting an arrestee, grounds of his arrest are to be furnished to him, in writing,
and non-compliance of the said requirements would be violative of the
fundamental rights guaranteed under Article 22(1) of the Constitution of India. In
such case of violation the arrest of the arrestee itself becomes vitiated and on that
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count only such an arrestee may be entitled to get bail.
9. In the instant case, also it appears that the notices which were served on the
petitioners do not contain any grounds of arrest, it only mentions about the Police
Station Case No. and the penal provisions involved in the offence. No basic facts
which necessitated the arrest of the petitioners have been mentioned in the notice.
Hence, there is a clear violation of the constitutional mandate of Article 22(1) of
the Constitution of India as well as statutory provisions contained under Section 47
of the BNSS. On that count itself, the petitioner is entitled to get bail.
10. Accordingly, both the above named petitioners are allowed to go on bail of Rs
: 1,00,000/-( Rupees One Lakh) each with one surety of like amount subject to the
satisfaction of learned Special Judge, NDPS, Sanitpur, Tezpur with following
conditions :
i. That the petitioners shall co-operate in the trial of Sessions Special
NDPS No. 114/2024, which is pending in the Court of the learned Special
Judge (NDPS)-cum-Sessions Judge, Sanitpur, Tezpur.
ii. That the petitioners shall appear before the Trial Court as and when
so required by the Trial Court;
iii. That the petitioners 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 petitioners shall provide his contact details including
photocopies of his Adhar Card or Driving License or PAN card as well as,
mobile number, and other contact details before the Trial Court;
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v. That the petitioners 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 petitioners shall submit his leave address and contact
details during such leave before the Trial Court; and
vi. That the petitioners shall not commit any offence while on bail.
11. This Bail Application, accordingly disposed of.
JUDGE
Comparing Assistant
