Gauhati High Court

Page No.# 1/ vs The State Of Assam on 24 July, 2025

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GAHC010104212025




                                                                  2025:GAU-AS:9635

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

                               Case No. : Bail Appln./1689/2025

            SHAHJAHAN ALI
            S/ O HABIBUR RAHMAN
            R/O KAKHYASINI, P.S. MORNOI
            P.O. RAKHYASINI, PIN NO. 783101
            DIST. GOALPARA, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M RAHMAN, MD A RAHMAN

Advocate for the Respondent : PP, ASSAM,
                                                                      Page No.# 2/11

                        BEFORE
         HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                    ORDER

Date : 24.07.2025

Heard Mr. M. Rahman, learned counsel for the petitioner. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the State respondent.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been languishing in jail hajot in connection with NDPS Case No. 10/2025, arising out of Bijaynagar Outpost under Palashbari P.S. Case No. 431/2024, under Sections 22(c)/29 of NDPS Act, 1985, pending before the Court of learned Additional Session Judge, Kamrup.

3. Scanned copy of the Trial Court Record has been received and I have perused the same.

4. It is submitted by Mr. Rahman, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is no way connected in the alleged offence. Nothing has been seized from the conscious possession of the present accused/petitioner. He was the driver of the vehicle and his vehicle was hired by the accused No. 1 to travel to Goalpara and he was not aware about carrying of any contraband in the vehicle. However, he got arrested in connection with this case on 31.10.2024 and was forwarded to judicial remand on 01.11.2024 and since then, he has been in custody. He further submitted that the charge-sheet of the case has already been filed, but till date, the Page No.# 3/11

charge has not been framed. He, accordingly, submitted that there is no probability of completion of trial within near future as the charge has not yet been framed and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail. The petitioner is a permanent resident of his addressed locality and will regularly appear before the Court to contest the case as and when the date is fixed by the Court. He also submitted that the co-accused persons, who were also arrested in connection with this case, had already been granted bail by this Court vide Orders dated 14.05.2025, passed in Bail Appln. No. 234/2025 & Bail Appln. No. 290/2025, and hence, considering the case of the present petitioner on the same footing, he may also be released on bail on the ground of parity.

5. Mr. Rahman further submitted that the grounds of arrest were not communicated to the present petitioner in the Arrest Memo as well as in the Notices under Sections 47 & 48 of BNSS, which is mandatorily required and non- compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He further submitted that the accused/petitioner was arrested on 31.10.2024 and was remanded for judicial custody on 01.11.2025, but due to non-mentioning of grounds of arrest in the Arrest Memo as well as in the Notices under Section 47 & 48 of BNSS, the arrest and the remand itself is illegal. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself.

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6. In this context also, Mr. Rahman, learned counsel for the petitioner, cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

7. Mr. Rahman also submitted that though in the case of commercial quantity, the rigor of Section 37 NDPS Act follows, but in cases where there is violation of the constitutional provision as mandated under Articles 21 & 22 of the Constitution of India, the statutory restriction will not affect the power of the Court to grant bail in such circumstances. More so, non-mentioning of grounds of arrest while issuing the Arrest Memo as well as in the Notices under Sections 47 & 48 of BNSS is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioner is entitled to bail.

8. Mr. Baishya, learned Additional Public Prosecutor, submitted in this regard that a huge quantity of contraband was recovered from the possession of the accused/petitioner. He further submitted that it is not a case that the accused was subsequently arrested in connection with this case, but he was caught red handed and the contrabands were recovered from his conscious possession and thus, it could not be stated that the accused/petitioner was not aware about his arrest or the grounds of arrest. More so, there was sufficient compliance of Page No.# 5/11

providing the Notices under Sections 47 & 48 of BNSS as well as the Arrest Memo wherein the accused had put his signature. Accordingly, he submitted that the recovery of the contraband was made from the conscious possession of the accused/ petitioner.

9. In that context, Mr. Baishya relied on a decision of Hon'ble Supreme Court passed in the case of Kasireddy Upender Reddy Vs. State of Andhra Pradesh & Ors. [Criminal Appeal No. 2808 of 2025 @ SLP (Crl.) No. 7746 of 2025] wherein it is observed that in order to inform the accused for committing certain offence, he must be told of the acts done by him which amounts to the offence and that information may be in a precise manner only to know about the offence alleged to have been committed by him. Paragraph No. 36 of the said judgment reads as under:

"36. If a person is arrested on a warrant, the grounds for reasons for the arrest is the warrant itself; if the warrant is read over to him, that is sufficient compliance with the requirement that he should be informed of the grounds for his arrest. If he is arrested without a warrant, he must be told why he has been arrested. If he is arrested for committing an offence, he must be told that he has committed a certain offence for which he would be placed on trial. In order to inform him that he has committed a certain offence, he must be told of the acts done by him which amounts to the offence. He must be informed of the precise acts done by him for which he would be tried; informing him merely of the law applicable to such acts would not be enough. (See: Vimal Kishore Mehrotra (supra))"

10. Further Mr. Baishya submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record and Case Diary, it Page No.# 6/11

cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage merely on the grounds of the prolonged period of incarceration or the alleged non-communication of the grounds of arrest.

11. In that context, Mr. Rahman, learned counsel for the petitioner, submitted that the order passed by the Hon'ble Apex Court in case of Kasireddy (supra) was only while dealing with a warrant of arrest. But, here in the instant case, it is not a case of warrant of arrest issued by the Court but the petitioner was arrested without complying the required provision of Sections 47 & 48 of BNSS.

12. After hearing the submissions made by the learned counsel for both sides and also on perusal of the Trial Court Record, it is seen that the I.O. has collected sufficient incriminating materials against the present accused/petitioner, who has been arrested in a case of commercial quantity. As stated above, in a case of commercial quantity, rigor of Section 37 will follow wherein the twin condition has to be satisfied before granting bail to an accused person. But, from perusal of the case record, it is seen that there are sufficient evidence against the present accused/ petitioner and accordingly, there cannot be any reason to believe that the accused is not guilty of the offence and will not repeat or commit the same offence while on bail.

13. Coming to the issue raised by the learned counsel for the petitioner in Page No.# 7/11

regards to communication of grounds of arrest, it is seen that while issuing the Arrest Memo as well as Notices under Sections 47 & 48 of BNSS, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Arrest Memo as well as Notices. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police.

14. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph Nos. 19, 21 & 48 of the judgment as under:

"19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.

21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC Page No.# 8/11

590committed at the time of arresting the accused and the grant of initial police custody remand to the accused.

48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase 'reasons for arrest' and 'grounds of arrest'. The 'reasons for arrest' as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the 'grounds of arrest' would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the 'grounds of arrest' would invariably be personal to the accused and cannot be equated with the 'reasons of arrest' which are general in nature."

15. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held has under:

"14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, Page No.# 9/11

if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second."

16. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notices issued to the present accused/petitioner and his family members under Sections 47 & 48 of BNSS and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Sections 47 & 48 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases, in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider his bail application in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act.

17. More so, the Hon'ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon'ble Supreme Court in paragraph No. 16 of the said judgment has held as under:

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"16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet 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."

18. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the charge- sheet has already been filed finding prima facie materials against the present petitioner. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo as well as in the Notices issued to the present accused/petitioner and his family members under Sections 47 & 48 of BNSS and also considering the fact that the co- accused persons have already been granted bail by this Court vide Orders dated 14.05.2025, passed in Bail Appln. No. 234/2025 & Bail Appln. No. 290/2025, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

19. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Kamrup, Amingaon, Guwahati, the accused/petitioner, namely, Page No.# 11/11

Shahjahan Ali, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Special Judge, Kamrup, Amingaon, Guwahati, on each and every date to be fixed by the Court;

(ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;