Gauhati High Court
Amir Ali vs The State Of Assam on 2 June, 2025
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GAHC010100022025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./174/2025
AMIR ALI
S/O LT.NAZIR PARAMANIK
R/OVILL-JHAGRARPAR PT. IV
P.S.AND DIST. DHUBRI
ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP
ASSAM
------------
Advocate for : MR SARFRAZ NAWAZ
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 02.06.2025
Heard Mr. S. Das, learned counsel for the accused and Mr. P. Borthakur,
learned Additional Public Prosecutor for the State respondent.
2. This petition, under Section 483, BNSS, 2023 is preferred by accused,
namely, Amir Ali, who has been languishing in jail hazot since 04.09.2023, in
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connection with Special Case No. 41/2024, under Sections 22(c)/29 of the NDPS
Act, arising out of Dhubri P.S. Case No. 345/2023, under Section 22(c) of the
NDPS Act, pending before the Court of learned Special Judge (Additional),
Dhubri, for grant of bail.
3. It is to be noted here that the aforementioned case has been registered on
the basis of an FIR lodged by S.I. Deepjyoti Engti, I/C Dharmashala W.P., on
01.09.2023.
4. The essence of allegation made in the aforesaid FIR is that acting on a tip
off, the informant and other police staff conducted search in the house of
accused Rafiqul Hoque @ Mirajul Hoque and recovered 18 nos. of small plastic
containers containing suspected heroin and one small plastic packet containing
47 nos. of small plastic containers containing suspected heroin in all total 65
nos., of plastic containers weighing 74 gms of heroin and without containers 9
gms of heroin and two packets of Spas-Trancan plus capsules each packet
containing 6 nos. of capsule strip and each strip containing 24 nos. of capsules -
total 288 nos. capsule and one small plastic packet containing 99 nos. of small
plastic containers, cash rupees and mobile phone, etc. and seized the same in
presence of witnesses and during interrogation, he disclosed that two more
persons, namely, Abu Bakkar Siddique of Kismat Hasdaha Part-IV and Shahidul
Islam Bepari @ Pintu of Dharmashala Part-IV are involved in illegal drug
business and accordingly, conducted search in the house of Shahidul Islam
Bepari and found one blue colour plastic pouch containing 190 nos. of
suspected contraband psychotropic substance i.e. Yaba (R7) tablets and two
packets of contraband psychotropic substance Spas Trancan plus tablets
(capsules), each packet containing 6 nos. of strip and each strip contains 24
nos. of capsules - total 288 capsules and cash rupees etc. and seized the same
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in presence of witnesses.
5. Mr. Das, learned counsel for the accused submits that this is the second bail
application preferred by the accused and the earlier one, being Bail Appln. No.
584/2024, was dismissed by this Court, vide order dated 10.04.2024. Mr. Das
also submits that this second bail application is preferred on the ground of long
incarceration due to delayed trial and non-communication of the ground of
arrest to the accused, in writing by the arresting authority, at the time of his
arrest. Mr. Das further submits that nowhere in the notices, arrest memo and
inspection memo, the ground of arrest of the accused has been communicated
to him, and as such, there is violation of Article 22(1) of the Constitution of
India and also the law laid down by Hon'ble Supreme Court in the cases of
Prabir Purkayastha vs. State (NCT of Delhi), reported in (2024) 8
SCC 254; Ram Kishor Arora vs. Directorate of Enforcement, reported
in (2024) 7 SCC 599; and Vihaan Kumar vs. State of Haryana,
reported in 2025 SCC OnLine SC 269. Mr. Ahmed further submits that for non-
compliance of Article 22(1) of the Constitution of India and the aforementioned
provisions of law, the accused is entitled to be enlarged on bail and therefore, it
is contended to allow this petition.
6. Per contra, Mr. Borthakur, learned Additional Public Prosecutor for the
State respondent has vehemently opposed the petition. He submits that though
the ground of arrest was not communicated to the accused in writing, yet the
same was communicated to him verbally, and there is also an indication in the
notice, under Section 50 and 50-A Cr.P.C. available in the scanned copy of the
record, that the accused was arrested in connection with Dhubri P.S. Case No.
345/2023, under Section 22(c) of the NDPS Act, and it is also stated that the
section of law under which he was arrested, is non-bailable and he can move
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the bail application before the Court. Mr. Borthakur also submits that in view of
the decision of Hon'ble Supreme Court in the case of Ram Kishor Arora
(supra), the accused is not entitled to be enlarged on bail, and since the law
laid down in the cases of Prabir Purkayastha (supra), Vihaan Kumar
(supra) and Pankaj Bansal vs. Union of India, reported in (2024)
7 SCC 576, cannot be given retrospective effect. Under such circumstances, Mr.
Borthakur has contended to dismiss the petition.
7. It is also to be noted here that learned counsel for both the parties have
submitted various decisions on bail application passed by Coordinate Benches of
this Court in support of their respective submissions.
8. Having heard the submissions of learned Advocates of both sides, I have
carefully gone through the petition and the documents placed on record and
also perused status report as well as the scanned copy of the record received
from the learned trial Court, and also gone through the decisions referred by
learned Advocates of both sides.
9. The basic facts herein this case are not in dispute. The accused was
arrested on 03.09.2023, at about 8 p.m., and he was given the notice under
Section 50 of the Cr.P.C. on the same day, wherein it is stated that: -
"You are hereby informed that you have been arrested in
connection with above reference case, the section of
law of the case is/are not bailable for Police. Hence
needed to be arrested and will be forwarded to the
Hon'ble Court. You can move of bail before the Hon'ble
Court."
10. It also appears from the arrest memo, inspection memo and the also from
the notices under Sections 50 and 50-A of Cr.P.C. that the ground of arrest has
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not been communicated, though the case number i.e. Dhubri P.S. Case No.
345/2023, under Section 22(c) of the NDPS Act is mentioned in the same.
11. Further, it appears from the status report that the charge under Sections
22(c)/29 of the NDPS Act was framed on 29.01.2024, and since then, thirteen
witnesses out of eighteen number of listed witnesses have been examined, and
the next date is fixed for evidence on 25.02.2025.
12. It is well settled in the case of Vihaan Kumar (supra) that when an
accused claims a violation of Article 22(1), the burden shifts to the investigating
officer to prove compliance. In the case in hand, from a perusal of the record
this court is unable to find any document to show communication of the ground
of arrest to the accused in writing, as mandated under Article 22(1) of the
Constitution of India and also in the decisions referred herein above.
13. It is also to be noted here that the effect of non-communication of the
ground of arrest is well settled by Hon'ble Supreme Court in the cases of
Prabir Purkayastha (supra), Pankaj Bansal (supra), Vihaan Kumar
(supra). In the case of Vihaan Kumar (supra) Hon'ble Supreme Court has,
in no uncertain terms, stated that if an arrested person is not informed of the
reasons for arrest in a language they understand, then the arrest becomes
illegal. It is also held that failure to inform the grounds of arrest to the accused's
relatives or nominated persons, under Section 50 of the Cr.P.C. (Now Sec 47 of
BNSS,2023) also renders the arrest illegal.
14. In the case of Vihaan Kumar (supra) Hon'ble Supreme Court has also
held that for any such violation, they must be released from custody. It also
went on to hold that even if statutory restrictions exist, constitutional violations
override such restrictions, and courts can grant bail in such cases.
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15. Now coming to the submission of Mr. Borthakur, learned Additional Public
Prosecutor, I find that in the case of Ram Kishor Arora (supra), Hon'ble
Supreme Court in paragraph No. 23, has dealt with the issue 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)."
16. Though, Mr. Borthakur, the learned Additional Public Prosecutor, on the
basis of the decision Hon'ble Supreme Court in the case of Ram Kishor Arora
(supra), submits that the decisions in Prabir Purkayastha (supra),
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Pankaj Bansal (supra) and Vihaan Kumar (supra), cannot be given
retrospective effect, yet it is well settled that judicial decisions are presumed to
have retrospective application unless mentioned otherwise.
17. Reference in this context can be made to a decision of Hon'ble Supreme
Court in the case of Kanisk Sinha & Anr. vs. The State of West Bengal
and Anr. Special Leave Petition (Criminal) No. 8609-8614, where it
has been held 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."
18. Though in the case of Pankaj Bansal (supra) the word 'henceforth' was
used meaning thereby from the date of the pronouncement of the judgment the
law laid down therein would be applicable, and on such count Hon'ble Supreme
Court has refused to give effect of the same retrospectively in the case of Ram
Kishor Arora (supra) and on such count the submission of Mr. Borthakur has
some force, yet there is no such direction in the case of Vihaan Kumar (supra),
regarding prospective effect of the said decision. That being so, in view of the
proposition of law, so laid down in the case of Kanisk Sinha & Anr.
(supra), judicial decisions are presumed to have retrospective application
unless mentioned otherwise. That being so, this Court is unable to record
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concurrence with the submission of Mr. Borthakur, the learned Additional Public
Prosecutor.
19. From the documents placed on record it appears that the mother of the
accused is suffering from cancer and undergoing treatment. Besides the
accused is also behind the bar for last 521 days. Examination of witnesses is still
going on.
20. Under the given facts and circumstances, this court is inclined to allow the
accused to be enlarged on bail. It is provided that on furnishing a bond of Rs.
1,00,000/- with one surety of like amount, to the satisfaction of the learned
Special Judge (Additional), Dhubri, the accused, namely, Amir Ali, be enlarged
on bail.
21. However, the learned trial Court is granted liberty to impose any other
condition so as to ensure attendance of the accused during the trial.
22. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
