Gauhati High Court
Page No.# 1/ vs The Union Of India on 16 June, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010107092025
2025:GAU-AS:7914
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1635/2025
JITUL ALI
S/O YASIN ALI
VILL- JAIGURU AMINGAON
P.O. AMINGAON
P.S. CHANGSARI
DIST. KAMRUP
PIN-781031
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE NARCOTIC CONTROL BUREAU.
Advocate for the Petitioner : MR. Y S MANNAN, MS. U HAZARIKA,MS. T SOM
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 16.06.2025
Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr.
S.C. Keyal, learned standing counsel for the NCB.
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2. On 18.12.2022, the petitioner was arrested in connection with NCB
Guwahati Case No. 24/2022 under Section 8(c)/20(b)(ii)(C) and Section 29 of
the NDPS Act along with two others. On 19.12.2022, he was produced before
the Court of learned Chief Judicial Magistrate, Amingaon, Kamrup. The
petitioner was sent to one day NCB remand. After his medical examination, the
petitioner was produced before the Court of learned Sessions Judge, Amingaon,
Kamrup.
3. The earlier prayer for bail for the petitioner was rejected by this Court
by order dated 26.06.2024 passed in BA 4258/2023 as well as by order dated
20.11.2024 passed in BA 2732/2024. According to the learned counsel for the
petitioner, this is a third application for bail before this Court by way of an
application made under Section 483 of BNSS, 2023.
4. It is submitted that the new ground on which this bail application has
been filed is that while arresting the petitioner, he was only served with a copy
of notice under Section 50 of the CrPC. However, no grounds of arrest was
served on the petitioner, which is in disregard to the provisions of Section 52 of
the NDPS Act; Section 50 of the CrPC [now Section 47(1) of the BNSS, 2023];
and Article 22(1) of the Constitution of India. In support of his submission that
for non-furnishing of the grounds of arrest, the petitioner would be entitled to
bail, the learned counsel for the petitioner has cited the following cases, viz., (i)
Madhu Limaye & Ors. v. Unknown, (1996) 1 SCC 292; (ii) Union Territory of
Ladakh & Ors. v. Jammu & Kashmir National Conference & Anr., 2023 SCC
Online SC 1140; (iii) Pankaj Bansal v. Union of India & Ors., 2024 (7) SCC 576;
(iv) Prabir Purkayastha v. State (Nct of Delhi), (2024) 8 SCC 254; (v) Directorate
of enforcement v. Subhash Sharma, 2025 SCC Online 240; (vi) Vihaan Kumar v.
The State of Haryana & Anr., 2025 3 Supreme 363; (vii) Kanishk Sinha & Anr. v.
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The State of West Bengal & Anr., 2025 3 Supreme 117; and, (viii) Ashish Kakkar
v. UT of Chandigarh, Crl. Appeal No. 1518/2025.
5. It is also submitted that out 12 witnesses, till date only 4 witnesses
have only been examined and therefore, there is remote chance of an early
trial.
6. Per contra, the learned standing counsel for the NCB has submitted
that in consequence of recovery and seizure of 153.2 kg. of ganja, 179 grams of
methamphetamine tablets, 1.020 kg. of brown colour substance suspected to be
heroin, and 16 bottles of codeine based Anrex- CP cough syrup, the petitioner
was arrested and he was provided with a memorandum of arrest, which
contains the reasons of arresting the petitioner. Accordingly, it has been
submitted that the same was in due compliance of the prescribed procedure.
Moreover, it has been submitted that the intimation of his arrest was given by
the petitioner to his wife on her mobile number xxxxx145 (phone number is
masked in this order) after his arrest on 18.12.2022. In support of his
submissions, the learned standing counsel for the NCB has cited the following
cases, viz., (i) P Soul & 2 Ors., v. the Union of India, Bail Appln. No. 1462/2025,
decided on 04.06.2025; (ii) Md. Faruque Khan v. The Union of India, Bail Appln.
No. 1621/2025, decided on 26.04.2025; (iii) Amir Khan & Anr. V. The Union of
India, Bail Appln. No. 1448/2025, decided on 26.05.2025; (iv) Abdul Salik & Anr.
V. The State of Assam, Bail Appln. No. 2656/2024, decided on 01.05.2025; and
(v) Arun Khundongbam @ Nanao v. The Central Bureau of Investigation, Bail
Appln. No. 1100/2025, decided on 09.05.2025.
7. In paragraph 10 of the case of Madhu Limaye (supra), the Supreme
Court of India vide referring to Article 22(1) of the Constitution of India by
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referring to 6th Amendment to the Constitution of the United States of America
and Article XXXIV of the Japanese Constitution of 1947 had stated that in
England whenever an arrest is made without a warrant, the arrested person has
a right to be informed not only that he is being arrested, but also the "reasons
or grounds" for the arrest.
8. In paragraph 29 of the case of Pankaj Bansal (supra), it has been
observed that if the it is only if the arrested person has knowledge of facts that
he/ she would be in a position to plead and prove before the Special Court that
their grounds to believe that he/ she is not guilty of such offence, so as to avail
the relief of bail and accordingly, it was held by the Supreme Court of India that
communication of the grounds of arrest as mandated by Article 22(1) of the
Constitution of India is meant to serve this higher purpose and must be given
due importance. Moreover, in paragraph 35 thereof the Supreme Court of India
had directed that henceforth a copy of written ground of arrest is necessary to
be furnished to the arrested person as a matter of course and without
exception. The said judgment was delivered on 03.10.2023.
9. In paragraph 22 of the case of Prabir Purkayastha (supra), the
Supreme Court of India has observed that the right to be informed about the
grounds of arrest flows from Article 22(1) of the Constitution of India and in
paragraph 29 and 30 thereof, it has been held by referring to Article 22(1) and
Article 22(5) of the Constitution of India that the grounds of arrest must be
communicated in writing. In paragraph 38 thereof, it has been held that
"reasons for arrest" are formal in nature and can be generally attributed to any
person arrested on accusation of an offence whereas the "grounds of arrest" is
personal in nature and specific to the person arrested.
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10. In paragraph 8 of the case of Subhash Sharma (supra), the Supreme
Court of India had held as follows:
"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."
11. In paragraph 14 of the case of Vihaan Kumar (supra), it has been held
that when a person is arrested without 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 and it was
also held that 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.
Accordingly, it was also held that once the arrest is held to be vitiated, the
person arrested cannot remain in custody even for a second. In paragraph 19
thereof, it has been held that Section 50 CrPC cannot have the effect of diluting
the requirement of Article 22(1) of the Constitution of India.
12. By referring to the case of Kanishk Sinha (supra), it was submitted that
the judgment of the Court will always be retrospective in nature.
13. In the case of Ashish Kakkar (supra), the Supreme Court of India has
held that the arrest memo cannot be constitute as grounds of arrest as no other
worthwhile particulars have been furnished to him and on the facts of the said
case, it was held that there was non-compliance of Section 50 of the CrPC.
14. The learned counsel for the petitioner had cited the case of Kasireddy
Upender Reddy (supra) to show from paragraph 14 thereof as to how in that
case the grounds of arrest was prepared in the said case.
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15. The contents of the memorandum of arrest dated 18.12.2022 in
respect of NCB Guwahati Crime No. 24/2022, bearing Ref. No. 07/NCB/GZU/ND
& PS-24/2022/ and the contents of notice under Section 50 CrPC dated
18.12.2022 are extracted hereinbelow:
MEMORANDUM OF ARREST
Ref. No.07/NCB/GZU/ND & PS/24/2022/
In consequence of / connection with the recovery and seizure of 153.2 Kgs of
Ganja, 179 gms of Methamphetamine tablets , 1020 Kgs of Brown colour substance
suspected to be heroine and 16 bottles of Anrex - CP Codeine based Cough Syrup
under Section 42 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as
amended) on 17.12.2022 at 03:00 PM at H. no. B/71, Railway east colony, Amingaon,
Kamrup (R), Assam I do hereby arrest Jitul Ali (age 35 years) S/o Yasin Ali R/o Vill-
Jaiguru, PO-Amingaon, PS-Changsari, Dist-Kamrup (R), Assam. 781031 under Section
42 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended) on
18.12.2022 at 1900 hrs at the office of Narcotics Control Bureau, Guwahati, Assam on
reasonable belief/ prima facie proof that the said seized goods/ articles /documents
are liable to confiscation under Section 60 & 61 of The Narcotic Drugs and
Psychotropic Substances Act, 1985 (as amended) and the aforesaid Jitul Ali is liable to
proceedings under Section 8(c) read with u/s 20(b)(ii)(c), 21(c), 22(c) and 29 of the
NDPS Act, 1985 (as amended) for contravention of the Provisions of The Narcotic
Drugs and Psychotropic Substances Act, 1985 (as amended) which have already been
duly explained to his .
The aforesaid arrested person is being forwarded to the competent authority
within twenty four hours hence for his remand to judicial/ jail custody.
Given under my hand and SEAL
Signature (Sic.)
Signature with date.
Name & Designation............
To,
Jitul Ali S/o Yasin Ali ANIL KUSHWAHA
R/o: Vill- Jaiguru, PO-Amingaon, Intelligence Officer
PS-Changsari, Dist- Kamrup (R), Assam-781031 Narcotic Control Bureau
Guwahati Zonal Unit, Guwahati
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NOTICE U/S 50 Cr.P.C.
Shri/Smt. : Jitul Ali
S/O : Yasin Ali
Village : Jaiguru
Post Office : Amongaon
Police Station : Changsari
District : Kamrup (R)
State : Assam, 781031
Case No. : NCB Guwahati Case No.24/2022
U/S : 8(c)/20(b)(ii)(c)/ 22(c) & 29 of NDPS Act, 1985
You are hereby informed that you are arrested in connection with the above
reference case and the case is non-bailable. So, you are forwarded to the Cut. You
may submit petition before the Hon'ble Court for you bail
Signature of Arrestee Signature of I.O.
Signature (sic.) Intelligence Officer
Narcotic Control Bureau
Guwahati Zonal Unit, Guwahati
16. As per the contents of the charges-sheet, the contraband narcotic
drugs and psychotropic substances were recovered from House No. B/71,
Railway East Colony, Amingaon.
17. From the contents of the memorandum of arrest, the reasons for
arresting the petitioner have been fully disclosed.
18. At this juncture, it would be relevant to quote the provisions of Section
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50 of the CrPC as well as Section 47 of the BNSS, 2023.
"S.50 of the CrPC: Person arrested to be informed of grounds of arrest and of right to
bail-
(1) Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested or
other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is
entitled to be released on bail and that he may arrange for sureties on his behalf.
S.47 of the BNSS, 2023: Person arrested to be informed of grounds of arrest and of
right to bail-
(1) Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested or
other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is
entitled to be released on bail and that he may arrange for sureties on his behalf."
19. Therefore, from Section 47(1) of BNSS, 2023, the requirement of law is
that on arresting a person without warrant, every police officer or other person
arresting any person without warrant is required to communicate to him full
particulars of the offence for which he is arrested, "or other grounds for such
arrest". The same is also prescribed in Section 50 of the CrPC.
20. Therefore, though the learned counsel for the petitioner has made a
very streneous argument to impress upon the Court that non-furnishing of the
ground of arrest would be fatal and has supported his submission with several
case citations, but in this case, the contents of the memorandum of arrest is
specific to the petitioner and gives the description of the offence for which he
has been arrested, and it also contains the sections of law based on which the
petitioner has been arrested. Thus, from the contents of the memorandum of
arrest, as extracted hereinbefore, the Court is of the considered opinion that the
said document contains "the full particulars of the offence for which he is
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arrested", which is in scrupulous compliance of the provisions of section 50
Cr.P.C., which is nearly para materia to the provision of Section 47(1) of the
BNSS, 2023. The same is also found to be in compliance of Section 52(1) of the
NDPS Act, 1985.
21. The provision of Section 50(1) of CrPC and Section 47(1) of the BNSS,
2023 have been quoted hereinbefore. The requirement of law under both the
provisions is that the arresting officer is required to communicate to the
arrested person "full particulars of the offence for which he is arrested" "or
other grounds for such arrest". The use of word "or" cannot be interpreted
under any cannons of interpretation of statute to be read as "and" so as to
mean that not only the arrested person is required to be communicated, (a) full
particulars of the offence for which he is arrested "and" (b) to also communicate
to the petitioner the ground of arrest.
22. In this regard, the Court is of the considered opinion that the words of
statutory provision must be understood and read in its plain and ordinary
meaning, which is the golden rule of interpretation. Therefore, the use of word
"or" in between "communicate to him full particulars of the offence for which he
is arrested" and "other grounds for such arrest" must be interpreted that
communication of either of the two would be sufficient and/ or that "grounds of
arrest" is inter changeably used with communication of "full particulars of the
offence", as appears in the provisions of Section 50(1) of the CrPC; Section
47(1) of the BNSS, 2023.
23. Section 52(1) of the NDPS Act is quoted below:
"S.52 : Disposal of persons arrested and articles seized-
(1) Any officer arresting a person under section 41, section 42, section 43 or section
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44 shall, as soon as may be, inform him of the grounds for such arrest."
24. From a perusal of the above quoted provisions of Section 52 of the
NDPS Act, it appears that in a departure from Section 50(1) CrPC and Section
47(1) of the BNSS, 2023, the requirement under sub-Section (1) of Section 52
of the NDPS Act is that any officer arresting a person under Section 41 to 44 of
the said Act is required to inform the arrested person of the "grounds for such
arrest". In this case, a "memorandum of arrest" was provided to the petitioner
on 18.12.2022, which is quoted hereinbefore. The same amounts to informing
the petitioner of the "grounds for such arrest". Accordingly, the Court is of the
considered opinion that for the contents of the memorandum of arrested which
is extracted hereinabove, there is due compliance of communicating to the
petitioner the "grounds of his arrest".
25. Thus, in light of the discussions above and on discussion of the cases
cited by the learned counsel for the petitioner, the Court is of the considered
opinion that by providing the petitioner the memorandum of arrest on
18.12.2022, the petitioner has been communicated the "grounds of his arrest",
which contains the description of huge quantity of drugs and psychotropic
substances seized, the provisions of law contravened by the petitioner for which
he was arrested. The said memorandum of arrest is specific to the petitioner.
26. Insofar as the consideration of bail on merit is concerned, this Court
had elaborately dealt with the issue of necessity of the petitioner to satisfy the
twin requirement of Section 37 of the NDPS Act, before being enlarge on bail,
which was done in the order dated 20.11.2024 passed in BA 2732/2024,
wherein reference was made to the decision of the Supreme Court of India in
the case of Union of India v. Ajay Kumar Singh @ Pappu, (2023) 0 Supreme
(SC) 285 (para 14 to 17), and Narcotics Control Bureau v. Mohit Aggarwal, AIR
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2022 SC 3444 (para 11 to 13).
27. The petitioner is not been able to satisfy the Court regarding the twin
requirement of Section 37 of the NDPS Act.
28. As regards the prayer for enlarging the petitioner on bail in view of
delay in conclusion of trial, in the earlier order dated 20.11.2024, passed by this
Court in BA 2732/2024, the said issue was thoroughly discussed by making
reference to the provisions of Section 479 of the BNSS, 2023 and the judgment
of Supreme Court of India in the cases of Satender Kumar Antil v. Central
Bureau of Investigation, AIR 2022 SC 3386 , it was held that the petitioner was
not entitled to bail.
29. In light of the discussions above, this bail application is rejected.
JUDGE
Comparing Assistant
