Page No.# 1/6 vs The State Of Assam
2025 Latest Caselaw 5826 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam on 27 June, 2025

                                                                         Page No.# 1/6

GAHC010066462025




                                                                   2025:GAU-AS:8871

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

                                Case No. : Bail Appln./981/2025

            NAZMUL HOQUE
            S/O-LATE ABUL KASEM,VILL-MORIOM NAGAR,P.S AND DIST-
            GOALPARA,ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, GOVT OF ASSAM



Advocate for the Petitioner   : MR. A M KHAN, MR T T MONI,R. ALI

Advocate for the Respondent : PP, ASSAM,




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                           ORDER

27.06.2025

1. Heard learned counsel Mr. A M Khan for the petitioner Nazmul Hoque who has filed this application under section 483 of the BNSS, 2023 with prayer for bail as the petitioner is behind bars since 14.06.2023 in connection with Special NDPS Case No. 33/2023 arising out of Goalpara P.S. Case No. 103/2023 under Page No.# 2/6

Sections 22(c)/29 of the NDPS Act.

2. Heard learned Additional Public Prosecutor, Mr. P. S. Lahkar for the respondent State.

3. It is submitted on behalf of the petitioner that the grounds of arrest have not been communicated to the petitioner in a manner which the petitioner could understand. The notice under section 50 of the Cr.PC is cryptic. 6 out of 7 witnesses have been examined.

4. The petitioner has relied on the decision of the Hon'ble Supreme Court in Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 8 SCC 254 , wherein it has been held that:-

"22. 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 committed at the time of arresting the accused and the grant of initial police custody remand to the accused."

XXX XXX XXX

"46. We are of the firm opinion that once this Court has interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the Courts in the country by virtue of Article 141 of the Constitution of India."

5. The petitioner has also relied on the decision of the Hon'ble Supreme Court in Vihaan Kumar Vs. State of Haryana reported in 2025 SCC online SC 269, wherein it has been held that:-

"When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to Page No.# 3/6

grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established."

6. On the contrary, learned Additional Public Prosecutor has raised serious objection. It is submitted that the petitioner's house was searched and SPASCORE von + capsules were recovered. A total of 1224 capsules were recovered from his house.

7. Considering the gravity of offence, the petitioner is not entitled to bail. It is submitted that the petitioner's prayer for bail on the ground of prolonged incarceration ought to be rejected as in a case of heinous offence, prolonged incarceration cannot be a ground to grant bail. It is further submitted by the learned Additional Public Prosecutor that the paragraph quoted herein below makes it clear that the mandate of furnishing written grounds of arrest to the accused has a prospective effect.

8. It is further submitted by the learned Additional Public Prosecutor that it has been held by the Hon'ble Supreme Court in Pankaj Bansal Vs Union of India in 2023 0 Supreme SC 1000 and 2024 7 SCC 576 that:-

"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 Page No.# 4/6

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."

9. This has been countenanced by the decision of the Hon'ble Supreme Court in Prabir Purkayastha (Supra), wherein it has been held that:-

" 50. From the detailed analysis made above, there is no hesitation in the mind of the Court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand dated 4th October, 2023 which vitiates the arrest and subsequent remand of the appellant.

51. As a result, the appellant is entitled to a direction for release from custody by applying the ratio of the judgment rendered by this Court in the case of Pankaj Bansal (supra). "

10. It is further submitted by the learned counsel for the petitioner that in a

decision of the Hon'ble supreme court in Kanishk Sinha and Anr Vs the State of West Bengal and Anr in SLP criminal No. 8609-8614 of 2024 , it has been observed vide order dated 27.02.2025 that:-

"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."

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11. I have considered the submissions at the bar with circumspection.

12. The decision of the Hon'ble Supreme Court in Pankaj Bansal's case was

passed on 03.10.2023. It is clear in Pankaj Bansal's case and in Prabir Purkayastha's case that the mandate to furnish written grounds of arrest has a prospective effect and not a retrospective effect. Thus the argument of the learned counsel for the petitioner holds no water.

13. The petitioner has been behind bars since 14.06.2023. The Trial Court has examined 6 out of 7 witnesses. This case is at the fag end of trial. The offences are of a heinous nature. There is every possibility that the petitioner may flee from justice if he is enlarged on bail.

14. The decision of the Hon'ble Supreme Court in Pankaj Bansal's case and in

Prabir Purkayastha's case (Supra) and in Vihaan Kumar's case (Supra) to furnish grounds of arrest in a manner which the petitioner should understand indeed has a prospective effect.

15. In addition to the argument of the learned counsel for the petitioner and the

learned Additional Public Prosecutor, this Court is of the opinion that the grounds of arrest have been properly conveyed to the petitioner.

16. Annexure-6 is the grounds of arrest annexed along with the additional-

affidavit. The petitioner was apprised about the offence he has been alleged with. The contraband was recovered from his house. The petitioner's family members were also apprised about the offence as the petitioner was evading arrest and the contraband was found in his house in his absence.

17. The Trial Court is directed to expedite the trial for speedy disposal of this

case. At this juncture, petitioner's prayer for bail has been rejected.

18. The petitioner is at liberty to file subsequent bail petition if trial is Page No.# 6/6

procrastinated any further by the Trial Court or by the State.

JUDGE

Comparing Assistant