Gauhati High Court
Page No.# 1/23 vs The State Of Assam on 24 June, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/23
GAHC010090492025
2025:GAU-AS:8431
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1371/2025
UBAIDUR RAHMAN @ UBAYDUR RAHMAN
S/O- MD. ABDUL NOOR.
VILLAGE- MAZARGRAM ERALIGOOL PART-1,
P.S- PATHARKANDI,
DISTRICT -SRIBHUMI, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. P BORDOLOI, MR. M ALAM
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
24.06.2025
Heard Mr. P. Bordoloi, learned counsel for the petitioner. Also heard Mr. P.S.
Lahkar, learned Addl. P.P., Assam for the State respondent.
2. By this application under Section 483 of the BNSS, 2023, the accused
petitioner, namely Ubaidur Rahman @Ubaydur Rahman has prayed for
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grant of bail in connection with N.D.P.S. Case No.60/2023 (corresponding to
Guwahati GRPS Case No.163/2022) pending in the Court of learned Special
Judge (NDPS), Kamrup (M), Guwahati under Sections 21(c)/29 of the NDPS
Act.
3. The facts of the case is that two packets of heroin weighing ½ kg each
had been seized from the possession of the petitioner and co-accused Abud
Ahmed on 19.11.2022. Another co-accused, i.e., Md. Majibur Rahman @Mujibur
Rahman had been arrested on the statements made by the petitioner and the
co-accused Abud Ahmed. However, a coordinate Bench of this Court, vide order
dated 05.01.2024 passed in Bail Appln.2479/2023, granted bail to Md. Majibur
Rahman @Mujibur Rahman, in terms of the judgment of the Supreme Court in
the case of Tofan Singh Vs. The State of Tamil Nadu, reported in (2021) 4
SCC 1, wherein it was held that the statement of a co-accused recorded under
Section 67 of the NDPS Act was not admissible in evidence against a co-
accused.
4. This is the 4th time that the petitioner has approached this Court for grant
of bail. Bail Application Nos.2479/2023, 3617/2023 and 956/2024 have been
rejected by this Court vide orders dated 05.01.2023, 09.01.2024 & 02.04.2024
respectively.
5. The petitioner had been arrested on 19.11.2022 in a railway station in
connection with possession of 2(two) packets of heroin from the petitioner and
co-accused, Abud Ahmed. Charge-sheet has been submitted by the police on
13.05.2023 and till date no charge has been framed against the petitioner, due
to the co-accused Majibur Rahman having absconded, after getting bail.
6. The petitioner's counsel submits that the petitioner having been in judicial
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custody for 944 days, without any trial having started, the petitioner should be
released on bail due to his long incarceration. In support of the above
submission, the learned counsel has relied upon the judgment of the Supreme
Court in the case of Rabi Prakash Vs. State of Odisha, reported in 2023
SCC OnLine SC 1109.
7. The petitioner's counsel submits that a perusal of the notice issued by the
police to the petitioner under Section 50 Cr.P.C. and the arrest memo dated
20.11.2022 shows that Sections 50 and 50A Cr.P.C. has not been complied with,
as no grounds for his arrest has been reflected in the above two documents. He
also submits that no signature of the witnesses or the relatives or friends of the
accused was taken in the arrest memo. The petitioner's counsel submits that in
terms of the judgment of the Supreme Court in the case of Vihaan Kumar Vs.
State of Haryana and Anr., reported in 2025 SCC OnLine SC 269, the
petitioner was to be informed of the grounds of arrest, which would satisfy the
requirement of Article 22(1) of the Constitution. However, the same was not
done. As such, the arrest of the petitioner was vitiated, due to which the
petitioner has to be released on bail. In support of the above submission, he
has also relied upon the judgment of the Supreme Court in the case of Prabir
Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.
8. The learned counsel for the petitioner submits that the absence of
signature of a witness in the arrest memo, when the arrest has been made in a
public place, gives rise to a reasonable ground that the arrest of the petitioner
may not have occurred in the manner as alleged by the prosecution. In this
respect, he has relied upon the judgment of the Division Bench of the Calcutta
High Court in the case of In Re: An application for bail under Section 439
of the Code of Criminal Procedure in connection with Harirampur P.S.
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Case No.110 of 2018 dated 15.05.2018 under Sections 22/24 of the
NDPS Act and In the matter of: Ansar Ali, C.R.M. 5708/2018.
9. The petitioner's counsel submits that all judgments of the Supreme Court
are retrospective in nature and in this respect, he has relied upon the judgment
of the Supreme Court in the case of Kanishk Sinha & Anr. Vs. State of
West Bengal & Anr., reported in 2025 SCC OnLine SC 443.
10. The petitioner's counsel submits that when the fundamental right of an
accused under Articles 21 & 22 of the Constitution had been violated, at the
time of arresting the accused, it was the duty of the Court dealing with the bail
application, to release the accused on bail. In this respect, he has relied upon
the judgment of the Supreme Court in the case of Directorate of
Enforcement Vs. Subhash Sharma, reported in 2025 SCC OnLine SC 240.
11. The learned counsel for the petitioner also submits that in cases of
conflicting judgment by Benches of equal strength of the Supreme Court, the
Supreme Court Constitution Bench judgment in National Insurance
Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, has held
that it is the earlier judgment which has to be followed by the High Courts.
12. The learned counsel for the petitioner thus prays that the petitioner
should be granted bail.
13. The learned Addl. P.P., on the other hand, submits that long incarceration
in jail does not entail grant of bail, as reflected in Para 14 & 21 of the judgment
of the Supreme Court in the case of Kalyan Chandra Sarkar Vs. Rajesh
Ranjan @ Pappu Yadav, reported in (2004) 7 SCC 528.
14. The learned Addl. P.P. also submits that Article 22(1) of the Constitution
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does not state that grounds of arrest have to be in writing. In this respect, he
has relied upon the judgment of the Supreme Court in the case of State of
Madhya Pradesh Vs. Shobharam and Ors., reported in AIR 1996 SC
1910 and in the case of Vihaan Kumar (supra).
15. The learned Addl. P.P. further submits that prior to the decision of the
Supreme Court in Prabir Purkayastha (Supra) and Vihaan Kumar (supra),
the Supreme Court in the case of Pankaj Bansal Vs. Union of India & Ors.,
reported in (2024) 7 SCC 576, had held that to give true meaning and
purpose to the Constitutional and the statutory mandate of Section 19(1) of the
Prevention of Money Laundering Act, 2002 of informing the arrested person of
the grounds of arrest, 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. He submits that the word 'henceforth' has also
been reflected in the case of Ram Kishor Arora Vs. Directorate of
Enforcement, reported in (2024) 7 SCC 599, wherein it had held that the
requirement of furnishing the grounds of arrest in writing as a matter of course
would henceforth be required from the date of pronouncement of the judgment
in Pankaj Bansal (supra), which was delivered on 03.10.2023.
16. The learned Addl. P.P. submits that the arrest of the petitioner herein is
prior to the judgment of the Supreme Court in Pankaj Bansal(supra) and as
such, the absence of "written grounds of arrest" while arresting the petitioner,
does not attract the law laid down in Vihaan Kumar (supra) and Prabir
Purkayastha (Supra). The learned Addl. P.P. further submits that for the
purpose of Article 22(1), 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. If a person is
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arrested on a warrant, the grounds for reasons of such arrest is the warrant
itself, that is, if the warrant is read over to him, that is sufficient compliance
with the requirement of being informed of the grounds of arrest. If he is
arrested without a warrant, he must be informed why he has been arrested. In
support of his submission, he has relied upon the judgment of the Supreme
Court in the case of Kasireddy Upender Reddy Vs. State of Andhra
Pradesh & Ors., Criminal Appeal No. 2808/2025, which was disposed of
on 23.05.2025.
17. The learned Addl. P.P. also submits that if there are two conflicting
judgments, the earlier judgment would have to be applied in terms of the
judgment of the Supreme Court in the case of Sundeep Kumar Bafna Vs.
State of Maharashtra & Anr., reported in (2014) 16 SCC 623.
18. The learned Addl. P.P. thus submits that the trial has not been started by
the learned Trial Court due to the co-accused Md. Majibur Rahman having
absconded, after being released on bail. He submits that the crime being a very
serious crime and as the drugs were seized from the possession of the
petitioner and co-accused Md. Abud Ahmed, the bail application should be
dismissed.
19. I have heard the learned counsels for the parties.
20. The petitioner has prayed for bail on two basic grounds. Firstly, that the
petitioner has been incarcerated for a prolonged period of time in judicial
custody, without the possibility of the trial being started in the near future.
Secondly, the petitioner not having been informed of his grounds of arrest,
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which was to be in writing, the same was in violation of Section 50 and 50A
Cr.P.C., besides the same being in violation of Article 22(1) of the Constitution.
As such, in terms of the judgment of the Supreme Court, the arrest of the
petitioner was vitiated and the consequences of the same should result in the
grant of bail to the petitioner.
21. As on date, the petitioner has been in jail for approximately 950 days.
Even though charge-sheet has been filed, no trial has commenced due to the
co-accused Md. Majibur Rahman having absconded, while being on bail. Further,
another accused, namely Md. Hussain Ahmed has not been arrested and has
been declared an absconder, thereby taking the total number of accused person
to 4.
22. In the case of Rabi Prakash (supra), the Supreme Court has held that
the prolonged incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the Constitution and in such a
situation, the conditional liberty must override the statutory embargo created
under Section 37(1)(b)(ii) of the NDPS Act.
23. In the case of Mohd. Muslim @Hussain Vs. State (NCT of Delhi),
Criminal Appeal 943/2023, the Supreme Court has held that grant of bail on
ground of undue delay in trial, cannot be said to be fettered by Section 37 of
the NDPS Act, given the imperative of Section 436A Cr.P.C., which is applicable
to offences under the NDPS Act.
24. In the case of Shariful Islam @ Sarif Vs. the State of West Bengal,
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SLA (Crl.) No.4173/2022, the Supreme Court granted bail to an accused who
had undergone custody for a period of 1 year 6 months, while the trial was at a
preliminary stage, in a case relating to Sections 21(c) and 37 of the NDPS Act.
25. In the case of Mohammad Salman Hanif Shaikh Vs. The State of
Gujarat, S.L.A. (Crl.) No.5530/2022, the Supreme Court vide it's order
dated 22.08.2022, enlarged the accused on bail in an offence punishable under
Sections 8(c), 21(c), 22(c) and 29 of the NDPS Act, in relation to seizure of 358
bottles of cough syrup containing Codeine. The accused was released on bail, as
he had spent about 2 years in custody and on the ground that trial would take
some time.
26. In the case of Raghubir Singh & Ors. Vs. State of Bihar, 1987 Crl.
L.J. 157, the Supreme Court has held that the Constitutional position is now
well-settled that the right to a speedy trial is one of the dimensions of the
fundamental right to life and liberty guaranteed by Article 21 of the Constitution.
27. The above judgments, i.e., Rabi Prakash (supra), Mohd. Muslim
@Hussain (supra), Shariful Islam (supra), Mohammad Salman Hanif
Shaikh (supra) and Raghubir Singh (supra) all point towards bail being
given to accused persons involved in cases relating to commercial quantity
under the NDPS Act, due to prolonged incarceration in custody and where trial
is not going to be concluded in the near future. On the other hand, in the case
of Kalyan Chandra Sarkar(supra), the Supreme Court has held that long
incarceration in jail does not entail grant of bail. In paragraph Nos.14 & 21 of
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the said judgment, the Supreme Court held as follows:-
"14. We have already noticed from the arguments of learned counsel for
the appellant that the present accused had earlier made seven
applications for grant of bail which were rejected by the High Court and
some such rejections have been affirmed by this Court also. It is seen
from the records when the seventh application for grant of bail was
allowed by the High Court, the same was challenged before this Court and
this Court accepted the said challenge by allowing the appeal filed by the
Union of India and another and cancelled the bail granted by the High
Court as per the order of this Court made in Criminal Appeal No. 745/2001
dated 25-07- 2001. While cancelling the said bail this Court specifically
held that the fact that the present accused was in custody for more than
one year (at that time) and the further fact that while rejecting an earlier
application, the High Court had given liberty to renew the bail application
in future, were not grounds envisaged under Section 437(1)(i) of the
Code. This Court also in specific terms held that condition laid down under
Section 437(1)(i) is sine qua non for granting bail even under Section 439
of the Code. In the impugned order it is noticed that the High Court has
given the period of incarceration already undergone by the accused and
the unlikelihood of trial concluding in the near future as grounds sufficient
to enlarge the accused on bail, in spite of the fact that the accused stands
charged of offences punishable with life imprisonment or even death
penalty. In such cases, in our opinion, the mere fact that the accused has
undergone certain period of incarceration (three years in this case) by
itself would not entitle the accused to being enlarged on bail, nor the fact
that the trial is not likely to be concluded in the near future either by itself
or coupled with the period of incarceration would be sufficient for
enlarging the appellant on bail when the gravity of the offence alleged is
severe and there are allegations of tampering with the witnesses by the
accused during the period he was on bail."
21. For the reasons stated above, we are of the considered opinion that
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the High Court was not justified in granting bail to the first respondent on
the ground that he has been in custody for a period of 3½ years or that
there is no likelihood of the trial being concluded in the near future,
without taking into consideration the other factors referred to hereinabove
in this judgment of ours."
28. With regard to whether the petitioner was informed of the grounds of
arrest, this Court has gone into the notice issued by the police to the petitioner
under Section 50 of the Cr.P.C and the Arrest Memo dated 20.11.2022. The two
documents do not contain the grounds of arrest of the petitioner. Thus, it is
clear that the grounds of arrest of the petitioner has not been put down in
writing, though the same could have been orally/verbally informed to the
petitioner. Section 50 & 50A of the Cr.P.C states as follows :
"50. 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.
[50A. Obligation of person making arrest to inform about
the arrest, etc., to a nominated person.--(1) Every police officer or
other person making any arrest under this Code shall forthwith give the
information regarding such arrest and place where the arrested person is
being held to any of his friends, relatives or such other persons as may be
disclosed or nominated by the arrested person for the purpose of giving
such information.
(2) The police officer shall inform the arrested person of his rights
under sub-section (1) as soon as he is brought to the police station.
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(3) An entry of the fact as to who has been informed of the arrest of
such person shall be made in a book to be kept in the police station in
such form as may be prescribed in this behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested
person is produced, to satisfy himself that the requirements of sub-section
(2) and sub-section (3) have been complied with in respect of such
arrested person.]"
29. As can be seen from the above Sections, an accused has to be informed
of the grounds of arrest and of the right to seek bail. The information regarding
his arrest should also be informed to any of his friends, relatives or persons
nominated by the arrested person.
30 In the case of Prabir Purkayastha (supra), the Supreme Court has
held that any person arrested on the basis of allegation of commission of
offences under the Unlawful Activities (Prevention) Act, 1967 or for any other
offences, has a fundamental and statutory right to be informed about the
grounds of arrest in writing and 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. It has also stated that the right to be informed about the
grounds of arrest flows from Article 22(1) of the Constitution and any
infringement of this fundamental right would vitiate the process of arrest and
remand. The Supreme Court further held that 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. It also held that "grounds of
arrest" would be required to contain all such details in the hand of the
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Investigating Officer, which necessitated the arrest of the accused. The Supreme
Court in Prabir Purkayastha (supra) followed the judgment passed by the
Supreme Court in Pankaj Bansal (supra).
31. In the case of Vihaan Kumar (supra) the Supreme Court followed the
decisions of Pankaj Bansal (supra) and Prabir Purkayastha (supra) by
reiterating the said decisions. It also held that when a violation of Article 22(1)
is proved, the arrest made would be rendered illegal and vitiated. Accordingly,
the person arrested cannot remain in custody thereafter.
32. In the case of Directorate of Enforcement vs. Subhash Sharma
(supra), the Supreme Court held that when the fundamental right of an
accused under Article 21 & 22 of the Constitution has been violated at the time
of arrest, it was the duty of the Court to release the accused on bail.
33. Thus, in terms of the judgments of the Suprme Court in the case of
Prabir Purkayastha (supra), Vihaan Kumar (supra) and Directorate of
Enforcement vs. Subhash Sharma (supra), an accused has to be released
on bail, if the grounds of arrest in writing has not been provided to an accused.
However, it would have to be kept in mind that the above three judgments, i.e,
Prabir Purkayastha (supra), Vihaan Kumar (supra) and Directorate of
Enforcement vs. Subhash Sharma (supra) have been made pursuant to
the judgment of the Supreme Court in the case of Pankaj Bansal (supra),
which was decided on 03.10.2023.
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34. In the case of Pankaj Bansal (supra), the Supreme Court was to decide
whether the arrest under Section 19 of the Prevention of Money Laundering Act,
2002 (in short PMLA), was valid and lawful and whether the mere passing of an
order of remand would be sufficient in itself to validate the arrest, if such arrest
was not in conformity with the requirements of Section 19 of the PMLA. Section
19 of the PMLA is reproduced hereinbelow as follows :
"19. Power to arrest.--(1) If the Director, Deputy Director, Assistant
Director or any other officer authorised in this behalf by the Central
Government by general or special order, has on the basis of material in his
possession, reason to believe (the reason for such belief to be recorded in
writing) that any person has been guilty of an offence punishable under
this Act, he may arrest such person and shall, as soon as may be, inform
him of the grounds for such arrest. (
2) The Director, Deputy Director, Assistant Director or any other officer
shall, immediately after arrest of such person under sub-section (1),
forward a copy of the order along with the material in his possession,
referred to in that sub-section, to the Adjudicating Authority in a sealed
envelope, in the manner, as may be prescribed and such Adjudicating
Authority shall keep such order and material for such period, as may be
prescribed.
(3) Every person arrested under sub-section (1) shall, within twenty-four
hours, be taken to a 1 [Special Court or] Judicial Magistrate or a
Metropolitan Magistrate, as the case may be, having jurisdiction: Provided
that the period of twenty-four hours shall exclude the time necessary for
the journey from the place of arrest to the 2 [Special Court or]
Magistrate's Court."
35. The Supreme Court in Pankaj Bansal (supra) held that to give true
meaning and purpose to the constitutional and statutory mandate of Section
19(1) of the PMLA by informing the arrested person of the grounds of arrest, it
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held 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. The emphasis to be given in paragraph 35 of the judgment
of the Supreme Court is on the word "henceforth. Paragraph 35 of the Pankaj
Bansal (supra) is reproduced hereinbelow, as follows :
"35. On the above analysis, to give true meaning and purpose to the
constitutional and the statutory mandate of Section 19(1) of the Act of
2002 of informing the arrested person of the grounds of arrest, we hold
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. The decisions of the Delhi High Court in Moin
Akhtar Qureshi (supra) and the Bombay High Court in Chhagan
Chandrakant Bhujbal (supra), which hold to the contrary, do not lay down
the correct law. In the case on hand, the admitted position is that the
ED's Investigating Officer merely read out or permitted reading of the
grounds of arrest of the appellants and left it at that, which is also
disputed by the appellants. As this form of communication is not found to
be adequate to fulfil compliance with the mandate of Article 22(1) of the
Constitution and Section 19(1) of the Act of 2002, we have no hesitation
in holding that their arrest was not in keeping with the provisions of
Section 19(1) of the Act of 2002. Further, as already noted supra, the
clandestine conduct of the ED in proceeding against the appellants, by
recording the second ECIR immediately after they secured interim
protection in relation to the first ECIR, does not commend acceptance as
it reeks of arbitrary exercise of power. In effect, the arrest of the
appellants and, in consequence, their remand to the custody of the ED
and, thereafter, to judicial custody, cannot be sustained.".
36. In the case of Madhya Pradesh vs. Sobharram & Others (supra) and
in Vihaan Kumar (supra) it has been basically stated that there is no
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requirement of communicating the grounds of arrest in writing though the
arrestee has to be informed of his grounds of arrest. The relevant extract of the
judgment of the Supreme Court in Vihaan Kumar (supra) is reproduced
hereinbelow :
"Therefore, as far as Article 22(1) is concerned, compliance can be
made by communicating sufficient knowledge of the basic facts
constituting the grounds of arrest to the person arrested. The grounds
should be effectively and fully communicated to the arrestee in the
manner in which he will fully understand the same. Therefore, it follows
that the grounds of arrest must be informed in a language which the
arrestee understands. That is how, in the case of Pankaj Bansal, this
Court held that the mode of conveying the grounds of arrest must
necessarily be meaningful so as to serve the intended purpose. However,
under Article 22(1), there is no requirement of communicating the
grounds of arrest in writing."
37. In cases where a person is caught red handed and the person knows the
reason for his detention, the Supreme Court in the matter of Madhu Limaye,
In Re, reported in (1969) SCC 1 292 has held in paragraph-10, as follows :
"11. Article 22 (1) embodies a rule which has always been regarded as vital and
fundamental for safeguarding personal liberty in all legal systems where the
Rule of law prevails. For example, the 6th Amendment to the Constitution of the
United States of America contains similar provisions and so does Article 34 of
the Japanese Constitution of 1946. 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 of the reasons or grounds for the arrest. The
House of Lords in Christie v. Leachinsky (1947)1 All ELR 567 went into
the origin and development of this rule. In the words of Viscount Simon if a
policeman who entertained a reasonable suspicion that X had committed a
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felony were at liberty to arrest him and march him off to a police station without
giving any explanation of why he was doing this, the prima facie right of
personal liberty would be gravely infringed. Viscount Simon laid down several
propositions which were not meant to be exhaustive. For our purposes we may
refer to the first and the third:
"1. If a policeman arrest without warrant upon reasonable suspicion of
felony, or of other crime of a sort which does not require a warrant, he must in
ordinary circumstances inform the person arrested of the true ground of arrest.
He is not entitled to keep the reason to himself or to give a reason which is not
the true reason. In other words, a citizen is entitled to know on what charge or
on suspicion of what crime he is seized.
2. ................
3. The requirement that the person arrested should be informed of the
reason why he is seized naturally does not exist if the circumstances are such
that he must know the general nature of the alleged offence for which he is
detained." Lord Simonds gave an illustration of the circumstances where the
accused must know why he is being arrested:
"There is no need to explain the reasons of arrest if the arrested man is
caught red-handed and the crime is patent to high Heaven."
The two requirements of clause (1) of Article 22 are meant to afford the
earliest opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting authority
and, also to know exactly what the accusation against him is so that he can
exercise the second right, namely, of consulting a legal practitioner of his choice
and to be defended by him. Clause (2) of Article 22 provides the next and most
material safeguard that the arrested person must be produced before a
Magistrate within 24 hours of such arrest so that an independent authority
exercising judicial powers may without delay apply its mind to his case. The
Criminal Procedure Code contains analogous provisions in Sections 60 and 340
but our Constitution makers were anxious to make these safeguards an integral
part of fundamental rights. This is what Dr. B.R. Ambedkar said while moving
for insertion of Article 15A (as numbered in the draft Bill of the Constitution)
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which corresponded to present Article 22.
"Article 15A merely lifts from the provisions of the Criminal Procedure Code
two of the most fundamental principles which every civilised country follows as
principles of international justice. It is quite true that these two provisions
contained in clause (1) and clause (2) are already to be found in the Criminal
Procedure Code and thereby probably it might be said that we are really not
making any very fundamental change. But we are, as I contend, making a
fundamental change because what we are doing by the introduction of Article
15A is to put a limitation upon the authority both of Parliament as well as of the
Provincial Legislature not to abrogate these two provisions, because they are
now introduced in our Constitution itself."
As stated in Ram Narayan Singh v. State of Delhi AIR (1953) SC 277 this
Court has often reiterated that those who feel called upon to deprive other
persons of liberty in the discharge of what they conceive to be their duty must,
strictly and scrupulously, observe the forms and rules of law. Whenever that is
not done the petitioner would be entitled to a writ of Habeas Corpus directing
his release."
The judgments cited by the counsels in Prabir Purkayastha (supra),
Vihaan Kumar (supra) and Pankaj Bansal (supra) show that the law has
developed to the extent that the grounds of arrest have to be in writing and it
should be furnished upon the accused at the time of arrest. The question is
whether the non-furnishing of the grounds of arrest in writing would always
result in bail being granted, if the arrest was in violation of 22(1) of the
Constitution, had also been considered by a three Judges Bench in Madhu
Limaye (supra).
38. In the case of Md. Noor Mohammad vs. The State of Assam &
Another vs. The State of Assam (Bail Application No.3043/2024) and in the
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case of Gurmel Singh vs. The State of Assam (Bail Application
No.1229/2025), a Coordinate Bench of this Court had granted bail to the
accused persons, who have been arrested under the NDPS Act in connection
with the seizure of commercial quantity of drugs by following the judgment of
the Supreme Court in the case of Prabir Purkayastha (supra) and Vihaan
Kumar (supra). The Coordinate Bench granted bail to the accused persons on
the ground that the grounds of arrest had not been communicated to the
accused or mentioned in the Arrest Memo as well as in the notice issued under
Section 50 Cr.P.C, corresponding to Section 47 BNSS. As such, there was a clear
case of violation of Article 21(1) of the Constitution and in spite of the statutory
restrictions under Section 37 of the NDPS Act.
39. On the other hand, a Coordinate Bench of this Court in Bail Appln.
No.1100/2025 (Arun Khundongbam @Nanao Vs. The Central Bureau
of Investigation), relating to offences under the Arms Act and rape under
Section 376D IPC, had rejected the bail application of the accused, on the
ground that it was not mandatory to intimate the grounds of arrest in writing to
an accused, prior to the pronouncement of the judgment in Pankaj Bansal
(supra), so long as the accused had been informed about his arrest at the time
he was produced before the learned trial Court in terms of Article 22(2) of the
Constitution, which provides that every person who is arrested and detained in
custody, shall be produced before the nearest Magistrate, within a period of 24
hours of such arrest.
40. With regard to whether the trial of the co-accused who have not
absconded should be proceeded with, even in the absence of the absconding
co-accused, a reading of Section 356 BNSS clearly shows that a trial can be
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proceeded with in respect of the remaining co-accused when the absconding co-
accused has been declared to be proclaimed offender under Section 84 BNSS.
41. It is clear from the provisions of Section 50, 50A Cr.P.C., which
corresponds to Section 47 & 48 BNSS and Article 22(1) of the Constitution, that
it is incumbent on the part of the enforcement agency to inform the accused the
grounds of his arrest. In the present case, though the grounds of arrest has not
been put down in writing in the notice under Section 50 Cr.P.C. and the arrest
memo dated 20.11.2022, the petitioner had been produced before the Court on
20.11.2022 itself, wherein the police had prayed for custodial interrogation of
the petitioner. The application for remanding the petitioner to police custody
clearly provides the grounds of arrest of the petitioner and the reasons for the
arrest. The very fact that the petitioner had allegedly concealed the alleged
article on his body with a brown tape, implies that the petitioner was aware of
the contraband that he was carrying. As such, the reverse burden of proof
under Section 35 NDPS Act would require the petitioner to prove that he was
innocent of any wrongdoing. The above being said, as has been observed in the
Supreme Court judgment in Madhu Limaye (supra), with regard to House of
Lords case in Christie v. Leachinsky, there is no need to explain the reason of
arrest, if the arrested man is caught red-handed and the crime is patent to high
Heaven. In any event, the arrest of the petitioner had been made on
19.11.2022, that is, prior to the judgment of the Supreme Court in Pankaj
Bansal (supra). As the Supreme Court in Pankaj Bansal (supra), has held
that "henceforth", the grounds of arrest must be communicated in writing to the
accused, the same would be applicable only after the said decision was made.
Thus, the effect of not writing down the grounds of arrest in the present case,
in the view of this Court, cannot be a ground to release the petitioner on bail.
Page No.# 20/23
Further, the subsequent decisions of the Supreme Court in Prabir
Purkayastha (Supra) and Vihaan Kumar (supra) have followed the
judgment of Pankaj Bansal (supra). Thus, the requirement of furnishing the
grounds of arrest in writing prior to the decision in Pankaj Bansal (supra) on
03.10.2023, cannot be a ground for granting bail to the petitioner.
42. The petitioner having been found in possession of a part of the seized 1
kg of heroin and charge-sheet having been filed, Section 35 and 37 of the NDPS
Act comes into play. In terms of Section 37 of the NDPS Act, bail can only be
given when the Public Prosecutor has been given an opportunity to oppose the
application for bail and the Court is satisfied that there are reasonable grounds
for believing that the accused is not guilty of the offence and is not likely to
commit any offence while on bail.
43. The learned counsel for the petitioner has also relied on the various
Supreme Court orders, where bail has been granted in NDPS cases, where the
accused has been in judicial custody for 1 ½ years, 2 years etc., on the ground
that the trial would not be completed in the near future. In this regard, it would
also be profitable to take into consideration the judgment of the Supreme Court
in the case of Mohd. Muslim (supra), wherein the Supreme Court had
granted bail, keeping in view the fact that Section 436A Cr.P.C., which is
equivalent to Section 479 BNSS, provides for grant of bail, where an accused
had undergone detention for a period extending up to one-half of the maximum
period of imprisonment specified for that offence under that law (not being an
offence for which the punishment of death has been specified). The Supreme
Court in the above case had also again reiterated the adage that 'bail is the rule
Page No.# 21/23
and refusal is an exception.' However, it held that grant of bail also has to be
balanced against public interest. It further held in Para 18, 19 & 20 as follows:-
18.) The conditions which courts have to be cognizant of are that there
are reasonable grounds for believing that the accused is "not guilty of
such offence" and that he is not likely to commit any offence while on
bail. What is meant by "not guilty" when all the evidence is not before the
court? It can only be a prima facie determination. That places the court's
discretion within a very narrow margin. Given the mandate of the general
law on bails (Sections 436, 437 and 439, CrPC) which classify offences
based on their gravity, and instruct that certain serious crimes have to be
dealt with differently while considering bail applications, the additional
condition that the court should be satisfied that the accused (who is in
law presumed to be innocent) is not guilty, has to be interpreted
reasonably.
Further the classification of offences under Special Acts (NDPS Act, etc.),
which apply over and above the ordinary bail conditions required to be
assessed by courts, require that the court records its satisfaction that the
accused might not be guilty of the offence and that upon release, they are
not likely to commit any offence. These two conditions have the effect of
overshadowing other conditions. In cases where bail is sought, the court
assesses the material on record such as the nature of the offence,
likelihood of the accused co-operating with the investigation, not fleeing
from justice: even in serious offences like murder, kidnapping, rape, etc.
On the other hand, the court in these cases under such special Acts, have
to address itself principally on two facts: likely guilt of the accused and
the likelihood of them not committing any offence upon release. This
court has generally upheld such conditions on the ground that liberty of
such citizens have to in cases when accused of offences enacted under
special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37
(i.e., that Court should be satisfied that the accused is not guilty and
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would not commit any offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and unsanctioned preventive
detention as well. Therefore, the only manner in which such special
conditions as enacted under Section 37 can be considered within
constitutional parameters is where the court is reasonably satisfied on a
prima facie look at the material on record (whenever the bail application is
made) that the accused is not guilty. Any other interpretation, would
result in complete denial of the bail to a person accused of offences such
as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court
would look at the material in a broad manner, and reasonably see whether
the accused's guilt may be proved. The judgments of this court have,
therefore, emphasized that the satisfaction which courts are expected to
record, i.e., that the accused may not be guilty, is only prima facie, based
on a reasonable reading, which does not call for meticulous examination
of the materials collected during investigation (as held in Union of India v.
Rattan Malik). Grant of bail on ground of undue delay in trial, cannot be
said to be fettered by Section 37 of the Act, given the imperative of
Section 436A which is applicable to offences under the NDPS Act too (ref.
Satender Kumar Antil (AIR 2022 SC 3386) supra). Having regard to these
factors the court is of the opinion that in the facts of this case, the
appellant deserves to be enlarged on bail."
44. In the present case, the petitioner has been in jail for less than 3 years.
However, as the punishment of rigorous imprisonment provided under Section
21(c) NDPS Act is that it shall not be less than 10 years, but which may extend
to 20 years, this Court finds that Section 436A Cr.P.C. is not applicable at this
stage of the case. On considering the seriousness of the offence and the fact
that the heroin was concealed on the body of the petitioner, this Court is not
inclined to grant bail at this stage. The bail application is accordingly rejected.
45. The above being said, the Trial Court is directed to proceed with the trial
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of the case, even in the absence of the absconding co-accused, in terms of
Section 350C BNSS, after taking steps for declaring the absconding co-accused
as a proclaimed offender under Section 84 BNSS.
JUDGE
Comparing Assistant
