Gauhati High Court

Page No.# 1/ vs The State Of Assam on 30 July, 2025

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GAHC010122102024




                                                                   2025:GAU-AS:9828

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

                               Case No. : Bail Appln./1781/2024

            ABDUL JALIL
            S/O LATE MUJAHAR ALI
            R/O BIDYAPARA, BHATIGAON
            P.S. DHUBRI
            DIST. DHUBRI, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MRS. K DEVI, MR. S M MOLLAH,MR. A F N U MOLLAH,R
AMIN,MS S A KHALIFA

Advocate for the Respondent : PP, ASSAM,

                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 30-07-2025

1. Heard Mr. S.M. Mollah, learned counsel for the petitioner. Also heard Mr. P.S. Laskar, learned Additional Public Prosecutor, Assam.

2. This application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed by the petitioner, namely, Abdul Jalil, who has been Page No.# 2/10

detained behind the bars since 16.11.2023 in connection with Special Case No. 317/2024 pending in the Court of learned Special Judge (Addl.), Dhubri corresponding to Dhubri Police Station Case No. 478/2023 under Sections 22(c)/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The gist of accusation in this case is that on 15.11.2023, one Utpal Ray, SI of police, had lodged an FIR before the Officer-In-Charge of Dhubri Police Station, inter-alia, alleging that on receipt of a secret information through reliable sources that large quantity of narcotic has been kept and concealed in the house of the present petitioner. On receiving the information, a GD entry was made at B.N. College T.O.P. vide BN College TOP GDE No. 258 dated 15.11.2023, a search team was constituted and it proceeded to the house of present petitioner. On reaching there, search was made in the suspected house and during search operation, Pyeevon Spas Plus Capsule, total 5040 Nos. in 210 strips, Pyeevon Spas Plus Capsule, total 4704 Nos. in 196 Strips, CARISPAS-I Capsule, total 1104 Nos. in 46 stripes, K-Kuff Plus Cough Syrup (Chlorpheniramine Maleate & Codeine Phosphate Syrup), total 10 Nos., Supkof-T Cough Syrup (Triprolidine Hydrochloride & Codein Phosphate Syrup), total 24 Nos., Monocoff-CT Cough Syrup (Triprolidine Hydrochloride & Codein Phosphate Syrup), total 13 Nos., and other materials were recovered therefrom and the present petitioner was apprehended during recovery of the aforesaid contraband.

4. Learned counsel for the petitioner has submitted that the petitioner is seeking bail mainly on the ground that at the time of arrest of the petitioner, though notice under Section 47 of BNSS was served on him, it did not contain any ground of his arrest, neither it contain any basic fact which necessitated his Page No.# 3/10

arrest in connection with the aforesaid case. He submits that apart from the reference of the Police Station case number in which he was arrested as well as penal provisions involved in the case i.e. under Section 22(c) of the NDPS Act, 1985 no other information was provided in the said notice.

5. Learned counsel for the petitioner submits that the non-furnishing of grounds of arrest, in writing is a violation of the constitutional mandate of Article 22(1) of the Constitution of India as clarified by the Apex Court in the case of Prabir Purkayastha versus State (NCT of Delhi) reported in (2024) 8 SCC 254 as well as Vihaan Kumar versus State of Haryana and Another reported in (2025) SCC 469. He submits that the Apex Court in the aforesaid judgments have clarified that when at the time of arrest of an arrestee, the grounds of arrest are not furnished to him, in writing, it would be a violation of his fundamental rights guaranteed under Article 22(1) of the Constitution and such a violation would render the arrest itself illegal and on that ground the petitioner is entitled to get bail.

6. On the other hand, Mr. P.S. Laskar, learned Additional Public Prosecutor has vehemently opposed the grant of bail to the petitioner on the ground that the quantity of contraband seized in this case is of commercial quantity, therefore, the embargo of Section 37 of the NDPS Act, 1985, is applicable in this case.

7. He also submits that the petitioner was caught red handed with the seized contraband and though the notice under Section 47 of the BNSS was served on him did not contain the grounds of arrest in an elaborate manner, it does give an indication of the case in which he was apprehended as well as the penal provisions of the said case. He submits that when an accused is caught red Page No.# 4/10

handed with the contraband and when notice under Section 47 of BNSS is served to him, the accused is fully aware of the illegal act and the circumstances under which he was arrested and in such a circumstance, the service of notice under Section 47 in the form as has been served in the present case to the petitioner, would be sufficient compliance of the mandate of Article 22(1) of the Constitution of India.

8. He submits that the protection given under Article 22(1) of the Constitution of India, is twofold, namely, the grounds of arrest are to be informed to an arrestee, so that it would enable him to engage a counsel of his own choice to defend him in the said case. He submits that in the instant case, the petitioner has engaged a counsel to defend him in the trial and therefore, the second purpose has been achieved. He also submits that the second purpose i.e. to enable him to defend himself by a legal practitioner of his own choice is the main purpose of the requirement of furnishing the ground of arrest to him. He further submits that when the main purpose has been achieved, even if the notice under Section 47 of the BNSS is served on the petitioner in the manner as it has been given in the instant case, it would be due compliance of the requirement of Article 22(1) of the Constitution of India.

9. Referring to the judgment of the Apex Court in the case of A.K. Gopalan- Vs-State of Madras reported in AIR 1950 SCC 27 as well as the case of State of Madhya Prades-Vs-Shobharam and others reported in AIR 1996 SC 1910, the learned Additional Public Prosecutor submits that though in the aforesaid judgments of the Apex Court, it was held that an arrestee has a right to be informed regarding the grounds of arrest, however, no discussion is there in the said judgments regarding providing the grounds of arrest, in writing.

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10. He also submits that in the aforesaid cases, the Apex Court has not distinguished between the meaning of phrases of " grounds of arrest" and "reasons of arrest". He also submits that the judgment of the Apex Court in the case of A.K. Gopalan -Vs- State of Madras (supra) was a judgment rendered by the Constitution Bench of the Hon'ble Supreme Court and the same cannot be overridden by the judgments rendered in the cases of Pankaj Bansal (supra), Vihan Kumar (supra) and Prabir Purkayastha (supra) as the same were rendered by the Benches of the Apex Court comprising of lesser number of Judges.

11. Learned Additional Public Prosecutor thus submits that the serving of the notice under Section 47 of BNSS to the petitioner, even though it does not contain the grounds of arrest in an elaborate form would be sufficient compliance of the constitutional mandate of Article 22(1) of the Constitution of India and therefore, the petitioner is not entitled to bail in this case.

12. I have considered the submissions made by learned counsel for both sides and have gone through the scanned copies of the Trial Court Records, which were requisitioned in connection with this case.

13. At the outset, let me clarify that the judgments of the Apex Court in the case of Pankaj Bansal-Vs-Union of India and Others (supra), Vihaan Kumar-Vs- State of Haryana and Another (supra) and Prabir Purkayastha-Vs- State (NCT of Delhi) (supra), are in no manner inconsistent with or contradictory to the judgment of the Apex Court rendered by its Constitution Bench in the case of A.K. Gopalan -Vs-State of Madras. In the case of A.K. Gopalan-Vs-State of Madras, the Apex Court had Page No.# 6/10

clarified that the constitutional protection guaranteed to an arrestee ensures the following 4 (Four) rights to an arrestee :-

(a) Right to be informed regarding grounds of Arrest.

(b) Right to consult, and to be defended by, a legal practitioner of his choice.

(c) Right to be produced before the Magistrate within 24 hours.

(d) Freedom from detention beyond the said period except by order of the Magistrate.

14. Article 22(1) of the Constitution of India ensures the rights mentioned in

(a) and (b) of above. The Apex Court in the case of Pankaj Bansal-Vs-Union of India (supra) did not give any contradictory view, rather, it further clarified the law by stating that the grounds of arrest are to be communicated to an arrestee, in writing. Same was reiterated by the Apex Court in the case of Prabir Purkayastha (supra) and Vihaan Kumar's case.

15. Constitution of India is not a rigid or static document but a living document and the Apex Court over the period of time, by rendering landmark judgments, has broadened scope and ambit of various fundamental rights guaranteed by the Constitution of India. The judgment of A.K. Gopalan (supra) which was rendered in the year 1950 did not put any halt to further interpretation of Article 22(1) of the Constitution of India when it observed that the said Article ensures two fold rights as already discussed in the foregoing paragraphs.

16. The judgments of the Apex Court in the case of Panakj Bansal (supra), Page No.# 7/10

Prabir Purkayastha (supra) and Vihaan Kumar (supra), has further broaden the interpretation of the Article 22 of the Constitution of India by requiring that the grounds of arrest are to be furnished to an arrestee as soon as possible after his arrest, in writing. Such interpretation can in no manner be regarded as contradictory or inconsistent to the judgment rendered by the Apex Court in the case of A.K. Gopalan -Vs- State of Madras (supra) and State of Madhya Pradesh -Vs-Sobharam and others (supra).

17. The requirement of Article 22(1) of the Constitution of India as explained by the aforementioned judgments of the Apex Court is that the grounds of arrest are to be communicated to an arrestee, in writing, as soon as possible after arrest of such an arrestee. Any violation of the said constitutional requirement would render the arrest of an arrestee as illegal and on that count itself the arrestee would be entitled to get bail.

18. In the instant case, the notice furnished to the petitioner under Section 47 of the BNSS at the time of his arrest does not contain any basic facts which necessitated his arrest, it only contains reference to the police station case number and the penal provisions involved in the case. No other information beyond that has been provided therein. Thus, it does not conform the requirement of Article 22(1) of the Constitution of India or Section 47 of the BNSS.

19. The submissions of the learned Additional Public Prosecutor that when a person is arrested red handed with contraband, he is aware about the facts for which he has been arrested and therefore, mere serving the notice under Section 47 in the format as has been done in the present case would be Page No.# 8/10

sufficient compliance of the Article 22(1) of the Constitution of India, is not acceptable inasmuch as such an interpretation would tantamount to diluting the constitutional requirement of furnishing the grounds of arrest, in writing, to the petitioner as soon as possible after his arrest as clarified by the Apex Court in the aforementioned judgments.

20. Though, in cases where accusations of offences under the NDPS Act, 1985, is made, the societal interest as well as right of an individual are to be balanced, however, in the garb of protecting societal interest, the police or the arresting authority, does not gets a license to violate the mandatory constitutional norms with impunity. Any attempt to encroach upon the fundamental rights of an individual which are protected by the Constitution of India has to be looked at very seriously.

21. In the instant case, by serving a bald notice to the petitioner purporting it to be a notice under Section 47 of BNSS, the arresting authority has violated the fundamental rights of the petitioner which are guaranteed to him under Article 22(1) of the Constitution of India.

22. This Court, therefore, does not agree with the submissions made by the learned Additional Public Prosecutor. The petitioner is therefore entitled to bail in this case.

23. For the reasons mentioned in the foregoing paragraphs and the discussions made hereinabove, the above named petitioner is allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand) with 1(one) surety of like amount to the satisfaction of the Ld. Special Judge, Dhubri, Assam with the following Page No.# 9/10

conditions :

(i) That the petitioner shall cooperate in the trial of Special Case No. 317/2024, which is pending in the Court of Ld. Special Judge (Addl.), Dhubri, Assam;

(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 petitioners;

(iv) That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court.

(v) 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 his leave address and contact details during such leave before the Trial Court.