Page No.# 1/6 vs Union Of India
2025 Latest Caselaw 5191 Gua

Gauhati High Court

Page No.# 1/6 vs Union Of India on 11 June, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                           Page No.# 1/6

GAHC010061752025




                                                                  2025:GAU-AS:7567

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

                                Case No. : Bail Appln./892/2025

             ARUN SHARMA
             S/O- LATE RAM ASHISH SHARMA, R/O- HINDU CHAKIA MAHAMAYA
             ASTHA, PS EAST CHAMPARA, DIST- EAST CHAMPARA, BIHAR



             VERSUS

             UNION OF INDIA
             TO BE REP BY THE NCB, GUWAHATI ZONAL UNIT, GUWAHATI.



Advocate for the Petitioner   : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A
CHOUDHURY

Advocate for the Respondent : SC, NCB,

                                         :: BEFORE ::
                   HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                         O R D E R

11.06.2025

Heard Mr. A. Ahmed, the learned counsel appearing for the petitioner. Also heard Mr. S.C. Keyal, the learned Standing Counsel, NCB.

2. This is an application under Section 483 of the BNSS, 2023 whereby the petitioner Arun Sharma has prayed for releasing him on bail as he is facing trial in Page No.# 2/6

NDPS Case No.222/2021 arising out of NCB Guwahati Crime No.13 & 13A/2021 pending in the court of learned Addl. Sessions Judge No.2, Kamrup(M) at Guwahati.

3. The petitioner is shown as arrested in this case while he was in custody in another case. The petitioner has claimed that the provision of law as contained in Sections 47 and 48 of the BNSS, 2023 were not complied with at the time of his arrest in this case.

4. Mr. Keyal has submitted that the petitioner was arrested on the basis of a Production Warrant issued by the Addl. Sessions Judge No.2, Kamrup(M), Guwahati. According to Mr. Keyal, the issue of Production Warrant is the compliance of Sections 47 and 48 of the BNSS, 2023. Mr. Keyal has relied upon a judgment of the Hon'ble

Supreme Court dated 23rd May 2025 delivered in Kashireddy Upender Reddy v State of Andhra Pradesh --- Criminal Appeal No. 2808 of 2025 @ SLP (Criminal) No. 7746 of 2025. Paragraph 36 of the said judgment is quoted 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))"

5. Mr. Ahmed has pointed out that the law laid down by the Supreme Court in the said judgment would be applicable if the petitioner was arrested on the basis of a warrant of arrest. According to Mr. Ahmed, the said judgment of the Supreme Court is not applicable in the present case because the petitioner was shown as arrested on the basis of the Production Warrant issued by the learned Addl. Sessions Judge. Mr. Page No.# 3/6

Ahmed has submitted that there is a difference between a warrant of arrest and the Production Warrant.

6. I have given my anxious considerations to the submissions made by the learned counsel of both sides.

7. In Prabir Purkayastha v. State (NCT of Delhi), (2024) 8 SCC 254, the Hon'ble Supreme Court has held 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 committed at the time of arresting the accused and the grant of initial police custody remand to the accused.

28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the "grounds" of "arrest" or "detention", as the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned.

29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.

37. The interpretation given by the learned Single Judge that the grounds of arrest Page No.# 4/6

were conveyed to the accused in writing vide the arrest memo is unacceptable on the face of the record because the arrest memo does not indicate the grounds of arrest being incorporated in the said document. Column 9 of the arrest memo (Annexure P-7) which is being reproduced hereinbelow simply sets out the "reasons for arrest" which are formal in nature and can be generally attributed to any person arrested on accusation of an offence whereas the "grounds of arrest" would be personal in nature and specific to the person arrested.

"9. Reason for arrest

(a) Prevent the accused person from committing any further offence.

(b) For proper investigation of the offence.

(c) To prevent the accused person from causing the evidence of the offence to disappear or tampering with such evidence in any manner.

(d) To prevent such person from making 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 the police officer.

(e) As unless such person is arrested, his presence in the court whenever required cannot be ensured."

45. We are of the firm opinion that once this 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 the courts in the country by virtue of Article 141 of the Constitution of India.

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 tampering 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."

8. In Vihaan Kumar ... Appellant Versus State of Haryana and Another , 2025 SCC OnLine SC 269, the Supreme Court has held as under:

"14. Thus, the requirement of informing the person arrested of the grounds of arrest Page No.# 5/6

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, 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.

3. The purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives as mentioned above is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualising the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement Page No.# 6/6

of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal."

9. In Directorate of Enforcement ... Versus Subhash Sharma 2025 SCC OnLine SC 240, the Apex Court has held as under:

"8. Once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution."

10. Coming back to the case in hand, when a person is shown arrested in a case while he was in detention in another case, it is a fresh arrest. Therefore, the compliance of Article 22 of the Constitution of India and the provisions of law as laid down in Sections 47 & 48 of the BNSS, 23023, is mandatory. In this case, no such notice was given to the petitioner before he was shown as arrested in this case. Therefore, the arrest of the present petitioner is bad in law.

11. The bail application is allowed. The petitioner Arun Sharma who is facing trial in NDPS Case No.222/2021 arising out of NCB Guwahati Crime No.13 & 13A/2021 pending in the court of learned Addl. Sessions Judge No.2, Kamrup(M) at Guwahati, shall be allowed to go on bail of ₹50,000/- with a surety of like amount to the satisfaction of the said court i.e. Addl. Sessions Judge No.2, Kamrup(M), Guwahati.

With the aforesaid direction, the bail application is disposed of.

JUDGE Comparing Assistant