Gauhati High Court

Page No.# 1/ vs The State Of Assam on 26 June, 2025

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GAHC010101122025




                                                                  2025:GAU-AS:8717

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

                               Case No. : Bail Appln./1541/2025

            SANJOY KUMAR
            S/O KULDIP SAHANI
            R/O KANSH PAKARI
            P.O. VISHNUPUR TARA
            P.S. MADHUBAN
            DIST.MOTIHARI, BIHAR.



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR D GOSWAMI, MR S AFRIDI

Advocate for the Respondent : PP, ASSAM,
                                                                             Page No.# 2/10

                                 BEFORE
                  HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                  ORDER

26.06.2025

Heard Mr. S. Afridi, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State 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. 37/2023 arising out of Garchuk P. S. Case No. 357/2022, registered under Sections 20(C)/27(A)/29 of NDPS Act.

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

4. It is submitted by Mr. Afridi, 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 29.11.2022 in connection with this case and since then, he is behind custody. He further submitted that, till date, out of 8 listed witnesses, 4 have been examined. He also raised the ground of parity, stating that three co-accused persons have already been granted bail in connection with this case. 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.

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

(i) Rabi Prakash Vs. State of Odissa [2023 LiveLaw (SC) 533 Page No.# 3/10

(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. Afridi, 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. Afridi 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 Page No.# 4/10

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. Mr. Lahkar, the learned Additional Public Prosecutor, submitted that during the investigation, the IO has collected sufficient incriminating materials against the accused/petitioner. He also submitted that, till date, out of 8 listed witnesses, 4 have already been examined, with the last witness examined on 15.02.2025 and thus, at this stage, he requested that the updated records be called for and submitted that this is not a fit case for granting bail to the accused/petitioner merely on the ground of the length of his detention. He also submitted that there may not be any written communication for grounds of arrest, but from the materials available in the case record, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, he raised objection in granting bail to the accused/ petitioner.

10. He 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 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. Thus, he 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.

11. Mr. Lahkar further submitted that the judgment in Pankaj Bansal vs. Union of Page No.# 5/10

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. Mr. Lahkar 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 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, Mr. Lahkar, 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.

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14. 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 2 (two) years 6(six) months and 28 (twenty-eight) days 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 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."

15. Upon perusal of the annexures filed along with the petition, more particularly, the Arrest Memo and the Notice issued to the present accused/petitioner under Section 50 of Cr. P.C. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioner along with the case number as well as the Section under which he was arrested are being mentioned, but admittedly Page No.# 7/10

there is no mention about the grounds of arrest in the in the Notice as well as the Arrest Memo. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police.

16. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 50 of Cr.P.C, rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non-supply of written grounds of arrest to the arrested accused/petitioner would vitiate the arrest even if the case has been charge- sheeted.

17. 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 said judgment.

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 Page No.# 8/10

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."

19. 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 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.

20. 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 Page No.# 9/10

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."

21. At the same time, it cannot be denied that the accused/petitioner has been behind bar for the last 2 years, 6 months, and 28 days, and that the prosecution has examined only 4 out of the 8 listed witnesses. Thus, the probability of completion of trial in near future cannot also be expected.

22. 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."

23. 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 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.

24. 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 Additional Sessions Judge Page No.# 10/10

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

(i) that the petitioner shall appear before the Court of learned 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;