Faijul Haque Alias Faizul Haque vs The State Of Assam
2025 Latest Caselaw 5264 Gua

Gauhati High Court

Faijul Haque Alias Faizul Haque vs The State Of Assam on 13 June, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

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GAHC010115812025




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

                               Case No. : Bail Appln./1804/2025

            FAIJUL HAQUE ALIAS FAIZUL HAQUE
            S/O ANOWAR HUSSAIN
            R/O VILL- MOKHANIA, BORMBOI, P.S. HAJO
            DIST. KAMRUP, ASSAM



            VERSUS

            THE STATE OF ASSAM
            TO BE REP. BY THE PP, ASSAM



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

Advocate for the Respondent : PP, ASSAM,




                                  BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                           ORDER

Date : 13.06.2025

Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor for the State.

2. By filing this third bail application under Section 483 BNSS, 2023, the Page No.# 2/14

petitioner, namely, Faijul Haque @ Faizul Haque, has sought for bail in connection with NDPS Case No. 31/2024(corresponding to North Guwahati P.S. Case No. 151/2023) under Sections 279/338/34 of IPC r/w Section 21(C)/29 of NDPS Act and Section 25(1-A)/27/35 of Arms Act, pending in the court of learned Special Judge, Kamrup, Amingaon.

3. The brief facts of the case is that on 03.12.2023, police received an information about a commercial quantity of narcotics being transported in a Swift car bearing Regd. No. AS-01-FQ-8535 from Hajo to Amingaon. Accordingly, the police personnel upon locating the vehicle near Judicial Academy, Amingaon, the occupants fired at the police, injuring two officers and attempted to flee but after a chase, the accused/petitioner was apprehended. One of the accused Salam was declared dead by the Doctor. During search, a factory-made pistol, ammunition and 30 soap boxes of heroin recovered from the said vehicle. Thereafter, a case was registered against the petitioner and other co-accused.

4. The learned counsel for the petitioner has submitted that the petitioner was arrested on 03.12.2023 and since then he has been detained in custody. The prosecution has cited 37(Thirty Seven) witnesses in the charge sheet and charge was framed on 06.03.2025. However, no any witness has been examined till date.

5. The main thrust of argument for the learned counsel for the petitioner is that no grounds of arrest was communicated to the petitioner in the notice served upon him U/S 50 Cr.P.C. (U/S 47 BNSS) or in the arrest memo which are mandatory in nature, which resulted in violation of his fundamental rights guaranteed under Articles 21/22 of the Constitution of India.

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In support of his submission, learned counsel for the petitioner has placed reliance on the following case laws-

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

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

6. According to learned counsel for the petitioner, the said guidelines of the Hon'ble Supreme Court has not been followed in the instant case. Hence, due to such irregularities made by the investigating agency during investigation, the accused petitioner may be enlarged on bail.

7. Per contra, Mr. Lahkar, learned Additional Public Prosecutor for the State has vehemently opposed in granting bail to the petitioner by stating that the alleged contraband item was recovered from the possession of the petitioner. As such, Section 37 of the NDPS Act will come into play.

8. Learned Additional Public Prosecutor by relying on para No. 28 of the case of Kasireddy Upender Reddy vs. State of Andhra Pradesh and Ors., reported in SLP(CRL.) No. 5691 of 2025, the Hon'ble Supreme Court held that "for the purpose of Clause (1) of Article 22, it is not necessary for the authorities to furnish full details of the offence. However, the information should be sufficient to enable the arrested person to understand why he has been arrested. The grounds to be communicated to the arrested person should be somewhat similar to the charge framed by the Court for the trial of a case."

9. Learned Additional Public Prosecutor also referred the case of Ram Kishor Arora vs. Directorate of Enforcement, reported in (2023) 16 S.C.R. 743, the Hon'ble Supreme Court held that " as discernible from the judgment in Page No.# 4/14

Pankaj Bansal case also noticing the inconsistent practice being followed by the officers arresting the persons under Section 19 PMLA, directed to furnish the grounds of arrest in writing as a matter of course, "henceforth", meaning thereby from the date of the pronouncement of the judgment. The very use of the word "henceforth" implied that the said requirement of furnishing grounds of arrest in writing to the arrested person as soon as after his arrest was not the mandatory or obligatory till the date of the said judgment. The submission of the learned Senior Counsel Mr. Singhvi for the Appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states that it would be necessary "henceforth" that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. Hence non furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 of PMLA as also Article 22(1) of the Constitution of India, as held in Vijay Madanlal (supra)."

10. Learned Additional Public Prosecutor has pointed out the allegations against the accused petitioner in the FIR, wherein it is reflected that the present petitioner was one of the occupants of the Swift vehicle bearing no AS01-FQ- 8535 and two other occupants were also present inside the vehicle i.e. co- accused Hiranya Thakuria and another Salam who expired during the exchange of shootout between police and the accused persons.

11. It is also submitted that inside the car near the driver's seat, one factory made pistol with one magazine containing two live rounds was found and in the Page No.# 5/14

rear seat, a black colored bag was found which contained the contraband items. The firearms and the narcotic drugs were seized and all three occupants were shifted to the Hospital.

12. According to the learned Additional Public Prosecutor, as the petitioner was apprehended along with narcotic drugs and the petitioner and the co- accused started firing towards police personnel in order to escape from the scene, under such backdrop, it cannot be said that they have no knowledge regarding the grounds of their arrest.

13. I have considered the submissions of learned counsel for the parties and also perused the trial court record which reflects that the accused petitioner was shifted to Hospital immediately after apprehension as the petitioner and the co- accused who occupied the swift car started firing towards the police personnel from inside the vehicle and as a retaliation, the police also fired towards the accused. As a result of which, the petitioner and the co-accused sustained injuries and one of them died on the spot.

14. In Prabir Purkayastha's case (Supra), a contention was raised that grounds of arrest were not informed to the accused either orally or in writing, and therefore, there was gross violation of the constitutional mandate under Article 22(1) of the Constitution of India and Section 50(1) of Cr.PC. In the said case, the Hon'ble Supreme Court, after extensively referring to its earlier judgment in Pankaj Bansal's case (Supra), in paragraphs 20 to 22 and 29 to 31, has observed

as under -

"20. 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 Page No.# 6/14

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 Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to the following observations made by this Court in Roy V.D. v. State of Kerala - (2000) 8 SCC 590.

"7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognized and applied in all civilized countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens."

Thus, any attempt to violate such fundamental right, guaranteed Page No.# 7/14

by Articles 20, 21 and 22 of the Constitution of India, would have to be dealt with strictly.

22. 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.

29. 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 requires 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 the requirement to communicate the grounds of arrest is concerned.

30. 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-

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compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be.

31. Furthermore, the provisions of Article 22(1) have already been interpreted by this Court in Pankaj Bansal (supra) laying down beyond the pale of doubt that the grounds of arrest must be communicated in writing to the person arrested of an offence at the earliest. Hence, the fervent plea of the learned ASG that there was no requirement under law to communicate the grounds of arrest in writing to the appellant-accused is noted to be rejected."

15. In Prabir Purkayastha's case (Supra) , after referring to the judgment in Ram Kishor Arora's case (Supra) and Pankaj Bansal's case (Supra), the Hon'ble

Supreme Court has held that the judgment in Pankaj Bansal's case would apply retrospectively, and it is also held that the ratio laid down in Pankaj Bansal's case is the law of the land binding on all the Courts in the country by virtue of Article 141 of the Constitution of India. In paragraphs 45 & 46 of Prabir Purkayastha's case (Supra), the Hon'ble Supreme Court has observed as under -

"45. It was the fervent contention of learned ASG that in the case of Ram Kishor Arora (Supra), a two- Judge Bench of this Court interpreted the judgment in the case of Pankaj Bansal (Supra) to be having a prospective effect and thus the ratio of Pankaj Bansal (Supra) cannot come to the appellant's aid. Indisputably, the

appellant herein was remanded to police custody on 4th October, 2023 whereas the judgment in the case of Pankaj Bansal (Supra) was delivered on 3rd October, 2023. Merely on a conjectural Page No.# 9/14

submission regarding the late uploading of the judgment, learned ASG cannot be permitted to argue that the ratio of Pankaj Bansal (Supra) would not apply to the present case. Hence, the plea of

Shri Raju, learned ASG that the judgment in Pankaj Bansal (Supra) would not apply to the proceedings of remand made on 4th October, 2023 is misconceived.

46. 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."

16. In Arvind Kejriwal's case (Supra) - 2024 SCC Online SC 1703, at paragraph 73, the Hon'ble Supreme Court has observed as under -

"73. In Prabir Purkayastha (Supra), this Court went beyond the rigors of the PML Act/UAPA. Drawing a distinction between "reasons to arrest" and "grounds for arrest", it held that while the former refers to the formal parameters, the latter would require all such details in the hands of the investigating officer necessitating the arrest. Thus, the grounds of arrest would be personal to the accused."

17. In Ram Kishor Arora's case (Supra), the Hon'ble Supreme Court has held that such service of grounds of arrest must be performed at an outer limit, within 24 hours of arrest.

18. In KVR Vidyasagar's case (Supra), the High Court of Andhra Pradesh in Page No.# 10/14

paragraph 44 & 45, has observed as under -

"44. As discussed above, the Hon'ble Apex Court in Pankaj Bansal's case, with reference to section 19(1) of the Prevention of Money Laundering Act, 2002 and Article 22 of the Constitution of India observed that "grounds of arrest be communicated in writing". The Hon'ble Apex Court in Prabir Purkayastha's case explained the difference between the 'reasons for arrest' and 'grounds of arrest', stating that the grounds of arrest may convey to the arrested accused all basic facts, on which he was being arrested to provide him an opportunity of defending himself against the 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.

45. Therefore, to comply mandate of Article 22(1) of the Constitution of India and section 47(1) of BNSS, 2023 in its sprit, I am of the considered opinion that the grounds of arrest must be informed in writing conveying the basic facts, on which the accused was arrested to provide him an opportunity of defending himself against the custodial remand and to seek bail."

19. It is the contention of the learned Additional Public Prosecutor that immediately after the arrest of the petitioner on 03.12.2023, he was served with a memo of arrest and Section 50 Cr.P.C. notice which are available in the record. Perusal of the same would go to show that the petitioner has received the same under acknowledgment and his signature is found on the said memo of arrest Page No.# 11/14

and Section 50 Cr.P.C. notice. It is not the case of the petitioner that he has not received the said Section 50 notice or memo of arrest. The said memo of arrest dated 03.12.2023 which reads as follows -

"1. Name of Police Station :- North Guwahati

2. Case DGE Ref :- Case No. 151/23 u/s 353/333/307/279/338/39 IPC R/W SC-21(c)/29 NDPS Act, R/W Section 25(1-A) 27/35 Arms Act.

3. Name of arrestee with full particulars, age etc.:-

Sri Faijul Haque (29 years) S/o Anowar Hussain Vill- Mokhania P.S. Hajo, Dist- Kamrup

4. Date and time of arrest- On 03/12/2023 at 9 PM

5. Signature of witness:- Samiran Begum

6. Any injury at the time of arrest:- As per inspection memo.

7. Whether release on bail or forwarded date etc :- 04/12/2023

8. Signature of arrestee :- Faijul Haque

9. Signature of police officer :- Illegible."

20. In Prabir Purkayastha's case (Supra), the Hon'ble Supreme Court has observed that 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.

21. In the intimation notice, in the case in hand, dated 03.12.2023, all basic facts of the case in which the petitioner was being arrested has been mentioned indicating the case number and the provisions of law under which he was arrested and he was informed to take necessary legal recourse through his Advocate.

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22. In Prabir Purkayastha's case (Supra), after referring to the judgment of Pankaj Bansal's case (Supra) , the Hon'ble Supreme Court has specifically held

that the grounds of arrest should be served in writing to the arrested accused mentioning the basic facts on which he is being arrested so as to provide him an opportunity of defending against custodial remand and to seek bail. Such basic facts of the case in which the petitioner was arrested in this case is found in the memo of arrest dated 03.12.2023. I have no hesitation to hold that the respondent- Police have followed the law laid down by the Hon'ble Supreme Court in Pankaj Bansal's case and Prabir Purkayastha's case (Supra), and no legal infirmity can be found in the arrest of the petitioner.

23. In Ram Kishor Arora's case (Supra), the Hon'ble Supreme Court has examined the judgment in Pankaj Bansal's case (Supra) and in paragraphs 16 & 22, it is observed as under -

"16. In view of the aforestated proposition of law propounded by the Constitution Benches, there remains no shadow of doubt that the law laid down by the three-Judge Bench in Vijay Madanlal Choudhary that Section 19(1) PMLA has a reasonable nexus with the purposes and objects sought to be achieved by the PML Act and that the said provision is also in the compliant with the mandate of Article 22(1) of the Constitution of India, any observation made or any finding recorded by the Division Bench of lesser number of Judges contrary to the said ratio laid down in Vijay Madanlal Choudhary would be not in consonance with the jurisprudential wisdom expounded by the Constitution Benches in cases referred above. The Page No.# 13/14

three-Judge Bench in Vijay Madanlal Choudhary having already examined in detail the constitutional validity of Section 19 PMLA on the touchstone of Article 22(1) and upheld the same, it holds the field as on the date.

22. In Vijay Madanlal Choudhary it has been categorically held that so long as the person has been informed about the grounds of his arrest, that is sufficient compliance with mandate of Article 22(1) of the Constitution. It is also observed that the arrested person before being produced before the Special Court within twenty-four hours or for that purposes of remand on each occasion, the Court is free to look into the relevant records made available by the authority about the involvement of the arrested person in the offence of money-laundering. Therefore, in our opinion the person arrested, if he is informed or made aware orally about the grounds of arrest at the time of his arrest and is furnished a written communication about the grounds of arrest as soon as may be i.e. as early as possible and within reasonably convenient and requisite time of twenty- four hours of his arrest, that would be sufficient compliance of not only Section 19 PMLA but also of Article 22(1) of the Constitution of India."

24. It also appears from the record that in connection with the alleged incident, the statement of three persons who were present on the spot were recorded by the Magistrate u/s 183 BNSS (Section 164 Cr.PC) wherein they stated that the swift vehicle was occupied by three persons including the Page No.# 14/14

present petitioner and they started firing towards the police personnel who chased them and driver of the vehicle drove the vehicle with high speed and fled away from the scene.

25. From the record, it also reveals that the accused petitioner was admitted to GMCH on 03.12.2023 and subsequently discharged on the same day and brought him to the police station. Accordingly, arrest memo and the Section 50 notice were issued to the petitioner at the time of his arrest as aforesaid.

26. In the case in hand, though there is no specific revelation regarding grounds of arrest in Section 50 notice or arrest memo, but the sequence is something different. As it appears that the petitioner was one of the occupants of the alleged vehicle from which the alleged contraband was recovered and to evade arrest, gunfight took place between the accused and the police and the petitioner was injured for which he was admitted to the hospital. Under such backdrop, it cannot be said that the accused petitioner was not aware of the fact why he was being arrested in connection with this case. Accordingly, the cited case laws vide Prabir Purkashyatha (supra) and Vihaan Kumar (supra) are not applicable in the instant case.

27. In view of the aforesaid discussion and under the facts and circumstances of the case, the Court is not inclined to grant bail to the petitioner and hence, the prayer for bail is rejected.

28. The bail application is disposed of accordingly.

JUDGE Comparing Assistant