Gauhati High Court

Page No.# 1/12 vs The Union Of India on 26 June, 2025

                                                                       Page No.# 1/12

GAHC010115682025




                                                                  2025:GAU-AS:8718

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

                               Case No. : Bail Appln./1823/2025

            RATNESH KUMAR
            S/O- SHRI RAMPARVESH THAKUR,
            VILL.- REPURA SUSTA,
            P.O.- DHOLI SAKRA, P.S.- SAKRA,
            DIST.- MUZAFFARPUR, BIHAR, PIN- 843119



            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE SC, NCB



Advocate for the Petitioner   : MR. N J DUTTA, B AHMED

Advocate for the Respondent : SC, NCB,
                                                                     Page No.# 2/12

                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

26.06.2025

Heard Mr. N. J. Dutta, learned counsel for the petitioner. Also heard Ms. M. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 201/2022 corresponding to NCB Crime No. 05/2022, registered under Sections 21(c)/29 of NDPS Act, pending before the Court of learned Additional Sessions Judge, No. 2, Kamrup (M), Guwahati.

3. The scanned copy of the case record has already been received, and I have perused the same.

4. It is submitted by Mr. Dutta, learned counsel for the petitioner, that the accused/petitioner is innocent and that nothing was recovered from his conscious possession, as alleged in the FIR. The petitioner was arrested on 07.03.2022 in connection with this case and has been in custody since then. He further submitted that, till date, out of 8 listed witnesses, 5 have been examined, and P.W.6 has been partly examined. The next date fixed for the examination of P.W.6 is 22.08.2025. He further submitted that there is no probability of completion of trial within near future as remaining witnesses are yet to be examined by the prosecution and hence, considering the period of long incarceration, the petitioner may be enlarged on bail.

Page No.# 3/12

5. In support of his submission, Mr. Dutta, learned counsel for the petitioner, further relied on the following decisions:

(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533

(ii) Kabirul Islam & Anr. Vs. The State of West Bengal [SLP(Crl) No. 12773/2023, decided on 28.02.2024]

(iii) Rased Mia Vs. The State of West Bengal [SLP (Crl) No. 14347/2023, decided on 24.01.2024]

(iv) Dhirendra Kr. Choudhury Vs. The State of Assam, decided on 14.08.2024]

(v) Zakirul Islam @ Md. Zakirul Islam @ Zakir Vs. The State of Assam, decided on 15.07.2024]

6. He also raised the issue of non-furnishing of the ground of arrest to the present accused/petitioner at the time of his arrest and accordingly he submitted that neither in the Arrest Memo nor in the Notice under Section 50 Cr.P.C., the petitioner was communicated with the grounds of arrest which is mandatorily required and non-compliance of the same is in violation of Articles 21 & 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. Dutta, learned counsel for the petitioner, has cited the following decisions:

Page No.# 4/12

(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. Dutta 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 of 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.

9. In this regard, Ms. Deka, learned counsel appearing on behalf of the NCB, has submitted that out of the 8 listed witnesses, 5 have already been examined, and that P.W.6 has been partly 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. 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.

10. She further 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 Page No.# 5/12

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.

11. Ms. Deka, submitted that the judgment in Pankaj Bansal vs. Union of India & Ors., reported in (2024) 7 SCC 576, passed by the Division Bench of the Hon'ble Supreme Court on 03.10.2023, wherein it was considered that henceforth there should be written communication of the ground of arrest. Thus, the judgment itself speaks that the judgment is of prospective in nature wherein the written communication of ground of arrest has to be made to any accused person after arrested on 03.10.2023. In the case of Ram Kishor Arora Vs. Directorate of Enforcement, reported in 2023 8 Supreme 514, also, the Hon'ble Apex Court reiterated the same facts in paragraph No. 23 of the said judgment, wherein it is expressed the view that " non-furnishing of grounds of arrest in writing till 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."

12. She further submitted that the ratio laid down in Pankaj Bansal (supra) has also been considered and affirmed by the Hon'ble Supreme Court in Prabir Purkayastha (supra). In Paragraphs 45 and 51 of the said judgment, the Apex Court reiterated that the principles enunciated in Pankaj Bansal (supra) would govern the issue. The said ratio has further been followed in Vihaan Kumar (supra), wherein a similar view has been expressed. Specifically, in Paragraph 15 Page No.# 6/12

of the judgment in Vihaan Kumar (supra), it has been observed that "although there is no requirement to communicate the ground of arrest in writing, what is stated in paragraphs 42 & 43 of the decision in the case of Pankaj Bansal are suggestion that merit consideration." Accordingly, it held that "the police have to balance the rights of a person arrested with the interests of the society. Therefore, the police should always scrupulously comply with the requirements of Article 22."

13. Citing the above referred judgments, Ms. Deka, learned counsel, submitted that the accused/petitioner is not entitled to be released on bail only on the ground of non-communication of grounds of arrest in written form.

14. Accordingly, Ms. Deka 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 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, she submitted that the bail prayer of the present petitioner may be rejected.

15. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the other annexures filed along with the petition. There is no dispute that the accused/petitioner is behind the bar for more than 3 (three) years in the present case and from the record it is seen that the ground of arrest was also not communicated to him while issuing the Notice under Section 50 as well as the Arrest memo. It is also settled proposition of law that every judgment passed by the Constitutional Court always has the retrospective effect unless the judgment itself specifically speaks Page No.# 7/12

that the judgment will operate prospectively. In that context, a decision of 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. can be relied on, 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."

16. I have perused the materials available on record as well as the judgments cited by the learned counsels for both sides. 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, corresponding to Sections 47 of BNSS. It is an admitted fact that the accused/petitioner is behind since 07.03.2022. 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, Page No.# 8/12

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.

17. 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."

18. 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.

19. In this regard, the learned counsel for the petitioner has relied on the decision rendered by the Hon'ble Apex Court in the case of Prabir Purkayastha (supra), and has emphasized paragraphs 19, 21, and 48 of the Page No.# 9/12

said judgment.

20. 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."

21. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 of Cr.P.C 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 Page No.# 10/12

Cr.P.C, 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.

22. 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."

23. At the same time, it cannot be denied that the accused/petitioner has Page No.# 11/12

been behind bar for more than 3 (three) years, and that the prosecution has examined only 6 [P.W. 6 partly examined] out of the 8 listed witnesses.

24. In the case of Rabi Prakash (supra), as relied by the learned counsel for the petitioner, the Apex Court has granted bail to the accused with a view 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)9ii) of the NDPS Act."

25. Further, in the case of Md. Muslim alias Hussain Vs. State (NCT of Delhi), reported in 2023 SCC Online SC 352, the Hon'ble Apex Court also considered the period of incarceration as a relevant factor and granted bail.

26. 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 of Cr.P.C as well as the considering the period of long incarceration and the view expressed by the Hon'ble Supreme Court in the case laws referred to hereinabove, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

27. 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 No.2, Kamrup (M), Guwahati, the accused/petitioner, namely, Ratnesh Kumar, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Page No.# 12/12

Additional Sessions Judge No.2, Kamrup (M), Guwahati, 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;