Abdul Hoque vs The State Of Assam
2025 Latest Caselaw 5351 Gua

Gauhati High Court

Abdul Hoque vs The State Of Assam on 16 June, 2025

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GAHC010109362025




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

                               Case No. : Bail Appln./1672/2025

            ABDUL HOQUE
            S/O- LATE IMAN ALI.
            R/O- VILL.- RAJABALA,
            P.S.- PHULBARI, DIST.- WEST GARO HILLS, MEGHALAYA.



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM



Advocate for the Petitioner   : MOTIUR RAHMAN, MR. O ULLAH,MR. A S TAPADER

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 16-06-2025

Heard Mr. M. Rahman, the learned counsel for the petitioner. Also heard Mr. M. P. Goswami, the learned Additional Public Prosecutor appearing on behalf of the State respondent.

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2. This is an application under Section 483 of Bharatiya Nyay Suraksha Sanhita, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 161/2023 [arising out of Jalukbari P. S. Case No. 269/2023] registered under Section 29 of NDPS Act which is pending before the Court of learned Additional Sessions Judge No. 5, Kamrup (Metro).

3. Scanned copy of the LCR has already been received. Perused the same.

4. It is submitted by Mr. Rahman, the 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 recovered from his possession and he was arrested in connection with this case only on the basis of the statement made by the co-accused u/s 67 NDPS. However, it is the settled position that the statement of the co-accused or the voluntary statement recorded under Section 67 of the NDPS Act is not admissible at the time of trial or that cannot be the basis for conviction. In that context, he also relied on a decision of Hon'ble Supreme Court passed in the case of State Vs. Pallulabid Ahmad Arimutta & Anr., reported in AIR Online 2022 SC 130, wherein, the case of Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1] is also relied on. He accordingly emphasized on paragraph Nos. 9 & 10 of the said judgment,, which read as under:

"9. Having gone through the records alongwith the tabulated statement of the respondents submitted on behalf of the petitioner-NCB and on carefully perusing the impugned orders passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) Page No.# 3/13

No. 1569/2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.

10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu [6 (2021) 4 SCC 1], that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16 th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless."

5. Mr. Rahman further submitted that the accused-petitioner is in custody since last 2 years 1 month 11 days and out of 7 nos. of accused/persons 6 have been granted bail by the Trial Court as well as the Hon'ble Coordinate Benches of this Court. So considering the case of the present petitioner on same footing, his bail prayer may be considered on the ground of parity.

More so, the petitioner is in custody for more than 2 years. But, the prosecution could not examine any witness till date out of 11 nos. of cited witnesses for the prosecution and thus it would take a considerable period for completion of the entire trial. Hence considering the ground of long incarceration the petitioner may be released on bail. He is the permanent resident of his addressed locality and hence there is no chance of absconding rather, he will appear before the learned Trial Court below on each and every date to be fixed by the Court.

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6. Mr. Rahman, the learned counsel for the petitioner has submitted that the grounds of arrest was not mentioned while furnishing the Arrest Memo, Inspection Memo and issuing notice under Section 50 of the Cr.P.C., which is a mandatory requirement. He also submitted that the family members were also not served with any notice u/s 48A of BNSS intimating grounds of arrest of the petitioner. The non-compliance of this requirement constitutes a violation of Articles 21 and 22(1) of the Constitution of India. 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.

7. In support of his submissions, Mr. Rahman, learned counsel for the petitioner, has 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.

8. 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 or Notice under Section 50 Cr.P.C. 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.

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9. Mr. Goswami, the learned Additional Public Prosecutor, submitted in this regard that though there was no recovery from the present petitioner but from the materials in the Case Diary it is seen that he is one of the prime accused and in connivance of the other accused/persons committed the offence under the NDPS Act.

10. Accordingly, he 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, it 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.

11. Mr. Goswami further submitted that the present accused/petitioner got arrested in connection with this case on 06.05.2023 i.e. prior to the judgment passed in case of Pankaj Bansal (supra) i.e. 03.10.2023. He further submitted that the Hon'ble Coordinate Benches of this Court also considered that the arrest which has been made prior to the judgment passed in Pankaj Bansal (supra) i.e. 03.10.2023, there is no mandatorily required provision for furnishing or communicating the grounds of arrest in written form.

12. Mr. Goswami further submitted that the communication of written grounds of arrest was first considered by the Hon'ble Supreme Court in the case of Pankaj Bansal v. Union of India, reported in (2024) 7 SCC 576 and the judgment and order was passed on 03.10.2023 wherein it was held that the communication of grounds of arrest in written form is mandatory. But, the judgment passed in Pankaj Bansal (supra) was prospective in nature where the written communication of grounds of arrest is applicable to the arrestee only Page No.# 6/13

after the order passed by the Hon'ble Supreme Court in case of Pankaj Bansal (supra) and there was no retrospective effect to the said judgment. Further he submitted that in case of Ram Kishore Arora v. Directorate of Enforcement, reported in (2024) 7 SCC 599, in para 23 of the said judgment it has been held that:-

"23. As discernible from the judgment in Pankaj Bansal Case also noticing the inconsistent practice being followed by the officers arresting the persons under Section 19 of 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)."

13. Mr. Goswami further submitted that the witnesses could not be examined by the prosecution due to absence of the learned Trial Court below as well as due to pendency of the various petitions before the learned Trial Court below. However, the process for issuing summons to the witnesses has already been taken by learned Trial Court below for procuring the attendance of the witnesses. Mr. Goswami further submitted that the main objective of 50(2) Cr.PC for information of the grounds of arrest is to entitle him for release on bail or for arrange of surety on his behalf. The grounds of arrest may not be specified in Page No.# 7/13

written form but the accused/petitioner is well aware about the reasons/grounds of arrest. More so, he submitted that from the record of LCR it is seen that the learned Trial Court below at the time of production of the accused/petitioner before the learned Trial Court below on 06.05.2023, the learned Magistrate had explained regarding the engagement of Advocate for defending him in this case and also for the information to his family members while passing the order of remand on 06.05.2023. Thus it is seen that there were sufficient compliance of Article 22(1) of the Constitution of India. Mr. Goswami further submitted that two accused/persons had already moved an application before the Hon'ble Supreme Court wherein the Hon'ble Supreme Court had directed to expedite the trial and to complete the same within 9 months from the date of receipt of order passed in Special Leave Application by the Hon'ble Supreme Court. The order was passed on 25.09.2024 and from said date the 9 months is yet to be completed as per direction of the Hon'ble Supreme Court. Accordingly Mr. Goswami submitted that it is not at all a fit case to consider his bail application at this stage. However, the learned Trial Court may be directed for expeditious trial of the present case.

14. Hearing the submissions made by the learned counsels for both sides, I have also perused the case record which has already been received by this Court. From record it is seen that the accused/petitioner is in custody since more than 2 years but till date the prosecution could not examine any of the witnesses out of 11 nos. of cited witnesses by the prosecution. Further it is seen that the prayer for bail of the present accused/petitioner was rejected by this Court on 09.05.2024 directing the learned Trial Court below to expedite the trial proceeding and to make effort to dispose of the matter as early as possible. But surprisingly even after the lapse of more than 1 year the prosecution could not Page No.# 8/13

examine any of the witnesses out of 11 nos. of prosecution witnesses. Thus it cannot be expected for completion of the trial within a very near future as the prosecution could not even examine any single witness till date.

15. It is an admitted fact that the case is of commercial quantity and on perusal of the case record it is seen that the I/O collected sufficient incriminating materials against the present accused/petitioner. But, in the same time it cannot be denied that the prosecution had failed to examine any witness till date in spite of long incarceration of the present petitioner. Further it is seen that in spite of the direction passed by Hon'ble Apex Court, the prosecution also could not examine the witnesses till date and hence completion of trial within very short period also cannot be expected. The Hon'ble Apex Court in the following cases had granted bail to the applicant considering the period of long incarceration:-

(i) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109]

(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022]

(iii) Anjan Nath. Vs. The State of Assam [Special Leave to Appeal (Crl.) No(s).

9860/2023]

(iv) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 SCC OnLine SC 2068]

(v) Mohammad Salman Hanif Shaikh Vs. The State of Gujarat [Special Leave to Appeal (Crl.) No(s). 5530/2022]

16. Coming to the issue raised by the petitioner in regards to non- communication of the grounds of arrest it is seen that the notice u/s 50 Cr.PC as well as the Arrest Memo and Inspection Memo do not specify the grounds of Page No.# 9/13

arrest while providing those to the petitioners. It is also a settled law that the judgment passed by Constitutional Court always has the retrospective effect unless the judgment itself specifically speaks that the judgment will operate prospectively. In this context the decision of the Hon'ble Supreme Court passed in Special Leave Petition (Criminal) Nos. 8609-8614 of 2024 [Kanishk Sinha & Anr. Vs. The State of West Bengal & Anr.], wherein in paragraph No. 3 of the judgment, it has been observed as under:

"...

Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bona fidely done something with the understanding of the law as it existed at the relevant point of time. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many."

17. 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.

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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 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."

18. 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, if the mandate Page No.# 11/13

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."

19. 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:

"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."

20. In the same time, it also cannot be denied that the accused/petitioner is behind the bar for more than last 2 years 1 month 11 days and out of 7 nos. of accused/persons 6 have been granted bail by the Trial Court as well as the Hon'ble Coordinate Benches of this Court. It also cannot be denied that to examine the witnesses, the prosecution may take a considerable period for completion of the trial.

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21. In view of the entire facts and circumstances as discussed above, viz-a-viz non-mentioning of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 Cr.P.C., and also considering the period of incarceration already undergone by the accused/petitioner, i.e. 2 years 1 month 11 days and considering the view expressed by the Hon'ble Supreme Court in the case of Pankaj Bansal (supra), Prabir Purkayastha (supra) and Vihan Kumar (supra) referred to hereinabove, without going much detail to the merit of the case I find it a fit case to extend the privilege of bail to the accused/petitioner.

22. Accordingly, it is provided that on furnishing a bond of Rs. 1,00,000/- (Rupees One lakh only) with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Additional Sessions Judge-cum-Special Judge (NDPS) No. 5, Kamrup (Metro), the accused/petitioner, namely, Abdul Hoque, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Additional Sessions Judge-cum-Special Judge (NDPS) No. 5, Kamrup (Metro), 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;

(iii) that the petitioner shall submit his Aadhar Card and PAN Card Page No.# 13/13

before the learned Additional Sessions Judge-cum-Special Judge (NDPS) No. 5, Kamrup (Metro); and

(iv) that the petitioner shall not leave the jurisdiction of the learned Additional Sessions Judge-cum-Special Judge (NDPS) No. 5, Kamrup (Metro), without prior permission.

23. In terms of above, this bail application stands disposed of.

JUDGE

Comparing Assistant