Page No.# 1/13 vs The State Of Assam
2025 Latest Caselaw 5693 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam on 25 June, 2025

                                                                       Page No.# 1/13

GAHC010123422025




                                                                  2025:GAU-AS:8599

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

                               Case No. : Bail Appln./1907/2025

            SHRI SEWA SINGH
            S/O- LATE MOHON SINGH.
            R/O- VILL.- JANAKPUR BOSTI, BARARA, P.S.- BARARA, DIST.- AMBALA,
            STATE- HARYANA.



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. P BORDOLOI, MR K J SAIKIA

Advocate for the Respondent : PP, ASSAM,
                                                                            Page No.# 2/13

                                 BEFORE
                  HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                  ORDER

25.06.2025

Heard Mr. P. Bordoloi, learned counsel for the petitioners. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent.

2. This is an application under Section 483 of the BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 14/2023, registered under Section 20(b) (ii) (c) of NDPS Act, which is pending before the Court of the learned Special Judge, NDPS, Karbi Anglong, Diphu.

3. Scanned copy of the case records has already been received and I have perused the same.

4. It is submitted by Mr. Bordoloi, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from his conscious possession. However, he got arrested in connection with this case on 30.10.2022 and for last 938 days, he is behind the custody. More so, the charge-sheet of the case has already been filed and till date, out of 7 (seven) numbers of listed witnesses, only 3 (three) witnesses are being examined by the prosecution. Thus, he submitted that there is no possibility of completion of trial within a short period as lots of witnesses are yet to be examined by the prosecution and hence, considering his period of long incarceration, the accused/petitioner may be released on bail.

5. In that context, Mr. Bordoloi also relied on following decisions:

(i) Ankur Chaudhary Vs. State of Madhya Pradesh [Special Leave to Appeal (Crl.) No. 4648/2024]

(ii) Ramlal Vs. State of Rajasthan [Special Leave to Appeal (Crl.) Page No.# 3/13

No(s). 9510/2024]

(iii) Shariful Islam @ Sarif Vs. the State of West Bengal [Special Leave to Appeal (Crl.) No. 4173/2022]

(iv) Nitish Adhikary @ Bapan Vs. the State of Bengal [Special Leave to Appeal (Crl.) No(s). 5769/2022]

(v) Manish Sisodia Vs. Directorate of Enforcement [SLP (Criminal) No. 8772/2024]

6. Apart from the ground of long incarceration, Mr. Bordoloi, learned counsel for the petitioner, further submitted that admittedly the grounds of arrest were not communicated to the present accused/petitioner in the Arrest Memo as well as in the Notice under Section 50/50(A) of Cr.P.C., which itself is in violation of Article 21 & 22(1) of the Constitution of India. It is the mandate of the Constitution of India that the accused/petitioner as well as his family member should be intimated the grounds of arrest.

7. In this context, Mr. Bordoloi, learned counsel for the petitioner, also cited the following decisions of Hon'ble Supreme Court:

(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. He also took the ground that no signatures of the witnesses were obtained at the time of issuing the Arrest Memo to the present petitioner. In this regard, he relied on the decision rendered by the Hon'ble Division Bench of the Calcutta High Court in C.R.M No. 5708 of 2018, wherein, it has been asserted by the Division Bench that " the absence of signature of witness in an Arrest Memo is sufficient to discharge the onus Page No.# 4/13

on the accused to establish that there exist reasonable grounds indicating wrongful detention in a NDPS Case".

9. Mr. Bordoloi 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 and the Notices under Sections 50 & 50A, corresponding to Sections 47 & 48 of BNSS, 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.

10. Ms. Borah, learned Additional Public Prosecutor, submitted in this regard that out of 7 (seven) numbers of listed witnesses, already 3 (three) numbers of witnesses are being examined and thus, considering the period of incarceration undergone by the accused/petitioner, it cannot be considered that there is any violation of Article 21 of the Constitution of India as submitted by the learned counsel for the petitioner.

11. She further raised the issue that in the present case, the accused/petitioner was caught red handed along with the contraband and thus, the ground of his arrest in connection with this case was well known to the present accused/petitioner.

12. Ms. Borah, learned Additional Public Prosecutor, further submitted that the case of Pankaj Bansal (supra) was passed on 03.10.2023, wherein the Articles 21 & 22(1) of the Constitution of India was considered and it has the prospective effect. But, here in the instant case, it is seen that the present accused/petitioner was arrested in connection with this case on 30.10.2022 and hence, neither the case Pankaj Bansal Page No.# 5/13

(supra) nor the subsequent observations made by the Hon'ble Supreme Court in cases of Prabir Purkayastha (supra) & Vihaan Kumar (supra) will be applicable in the present case.

13. In that context, Ms. Borah also relied on a decision of Hon'ble Supreme Court passed in Crl. A. No. 3865/2023 (SLP Crl. .No. 12863/2023) (Ram Kishor Arora Vs. Directorate of Enforcement) and he mainly emphasized on paragraph No. 23 of the judgment, which reads as under:

"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)."

14. Accordingly, the learned Additional Public Prosecutor submitted that the bail prayer of the present petitioner cannot be considered at this stage on the ground of incarceration as well as on the ground of non-furnishing of the ground of arrest to the Page No.# 6/13

accused/petitioner. From the facts and circumstances of this case itself, it is sufficient to hold that the petitioner was well aware about the grounds when he was caught red handed along with the contraband. Accordingly, Ms. Borah submitted that the bail prayer of the present petitioner may be rejected.

15. Ms. Borah also 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 and Case Diary, 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. Thus, she raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage.

16. Mr. Bordoloi, learned counsel for the petitioner, submitted in this regard that as per the F.I.R., it is seen that there was prior information to the Investigating Officer and hence, it cannot be said that the person caught red handed or the police officer had no time to serve Notices under Sections 50 & 50A of Cr.P.C., corresponding to Sections 47 & 48 of BNSS. She further submitted that the Articles 21 & 22 of the Constitution of India are the inherent right of every person and non-mentioning of grounds of arrest in the Notices as well as in the Arrest Memo itself is in violation of Articles 21 & 22(1) of the Constitution of India.

17. In regards to the issue of prospective effect as raised by the learned Additional Public Prosecutor, it is submitted by Mr. Bordoloi, learned counsel for the petitioner, that the judgment passed by the Constitutional Court always has the retrospective effect unless the judgment itself specifically speaks that the judgment will operate prospectively. In that context, he also relied on a decision of Hon'ble Supreme Court Page No.# 7/13

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."

18. Citing the above referred judgments, Mr. Bordoloi, learned counsel for the petitioner, submitted that it is fit case wherein the bail can be granted to the present accused/petitioner basically on 2 (two) grounds, i.e. on non-furnishing of grounds of arrest as well as the period of long incarceration already undergone by the accused/petitioner.

19. I have considered the submissions made by the learned counsels for both sides and also perused the materials available on record as well as the judgments cited by the learned counsels for both sides.

20. From the submissions made by the learned counsels for both sides, it is seen that basically there are 2 (two) issues raised in the present case, i.e. the period of long incarceration and non-communication of grounds of arrest to the present petitioner in the Arrest Memo as well as in the Notices under Sections 50 & 50A of Cr.P.C., corresponding to Sections 47 & 48 of BNSS. From the records, it is seen that till date, the prosecution could examine only 3 (three) numbers of witnesses out of 7 Page No.# 8/13

(seven) numbers of cited witnesses and in the same time, it is also an admitted fact that the accused/petitioner is behind the bar for last 938 days. Further it is also the admitted fact that the grounds of arrest were not communicated to the petitioner as well as to his relatives in the Notices under Sections 50 & 50A of Cr.P.C., corresponding to Sections 47 & 48 of BNSS, as well as in the Arrest Memo. The Hon'ble Apex Court in the cases of Pankaj Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar (supra), as referred above, had discussed in detail in regards to non-communication of the grounds of arrest to the accused persons and it is considered in various paragraphs of the judgments that non-compliance of same is in violation of Article 21 & 22(1) of the Constitution of India.

21. The Hon'ble Supreme Court in the case of Directorate of Enforcement Vs. Subhash Sharma, reported in 2025 SCC OnLine 240, in paragraph No. 8 of the judgment, has observed that " 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."

22. So, from the discussion made above, it is seen that as on today, there is no such distinction made for consideration of bail in cases where the accused persons were caught red handed or subsequently arrested. But, the Hon'ble Apex Court in all the cases, as referred above, had expressed the view that non-furnishing of grounds of arrest to the accused person as well as to his family members, relatives or friends is in complete violation of mandate of Article 21 & 22(1) of the Constitution of India.

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23. 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.

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 Page No.# 10/13

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."

24. 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 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."

25. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notices issued to the present Page No.# 11/13

accused/petitioner under Section 50 of Cr.P.C., corresponding to Section 47 of BNSS, and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 50 of Cr.P.C., corresponding to Section 47 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases, in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider his bail application in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act.

26. 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."

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27. Further, it is also seen that the petitioner is behind the bar for last 938 days and till date, only 3 (three) witnesses have been examined out of 7 (seven) numbers of cited witnesses and hence, the probability of completion of trial within near future is also cannot be expected at this stage.

28. In view of the entire discussions made above, viz-a-viz, considering both the grounds of long incarceration of 938 days as well as non-furnishing of grounds of arrest in the Arrest Memo and also in the Notices issued to the present accused/petitioner and his family members under Section 50 & 50A of Cr.P.C., corresponding to Sections 47 & 48 of BNSS, and further considering the observations made by the Hon'ble Apex Court in the case laws referred to hereinabove, this Court is of the considered opinion that the petitioner has made out a case for grant of bail and therefore, I am inclined to grant the privilege of bail to the accused/petitioner.

29. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, NDPS, Karbi Anglong, Diphu, the accused, namely, Shri Sewa Singh, be enlarged on bail, subject to the following conditions:

(i) that the accused shall appear before the Court of learned Special Judge, NDPS, Karbi Anglong, Diphu, on each and every date to be fixed by the Court;

(ii) that the accused 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;

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(iii) that the accused shall submit his Aadhar Card and PAN Card before the learned Special Judge, NDPS, Karbi Anglong, Diphu; and

(iv) that the accused shall not leave the jurisdiction of the learned Special Judge, NDPS, Karbi Anglong, Diphu, without prior permission.

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

JUDGE

Comparing Assistant