Gauhati High Court

Page No.# 1/12 vs The State Of Assam on 3 June, 2025

                                                                       Page No.# 1/12

GAHC010089642025




                                                                  2025:GAU-AS:7169

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

                               Case No. : Bail Appln./1362/2025

            SOFIQUL ISLAM @ SHAFIQUL ISLAM MONDAL AND 2 ORS.
            S/O ABU SHAMA MANDAL
            R/O VILL- KATHURI, P.S. LAKHIPUR
            DIST. GOALPARA, ASSAM

            2: BAHARUL ISLAM
             S/O NUR ISLAM
            R/O VILL-SHILAPANI
            P.S. LAKHIPUR
            DIST. GOALPARA
            ASSAM

            3: ZUNAIT HUSSAIN
             S/O MOSDDEK HUSSAIN
            R/O VILL-POLASKANDI
            P.S. LAKHIPUR
            DIST. GOALPARA
            ASSA

            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : DR. B N GOGOI, S ISLAM

Advocate for the Respondent : PP, ASSAM,
                                                                      Page No.# 2/12

                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

03.06.2025

Heard Dr. B. N. Gogoi, learned counsel for the petitioners. Also heard Ms. S. H. Bora, 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/petitioners, who have been arrested in connection with Special (NDPS) Case No. 01/2025, arising out of Lakhipur P. S. Case No. 252/2024, registered under Sections 22(C)/29 of NDPS Act, which is pending before the Court of learned Special Judge, Goalpara.

3. It is submitted by Dr. Gogoi, learned counsel for the petitioners, that the present accused/petitioners are innocent and they are not at all involved in the alleged offence. It is further submitted that nothing has been recovered from their conscious possession. However, the accused/petitioners were arrested on 11.10.2024 and have been in custody since then. The charge sheet was filed on 12.12.2024, but till date, the charge has not yet been framed by the learned Trial Court. He further submitted that, as per the FSL report, although the FSL expert has opined that the seized capsules contain Tramadol, the quantity of Tramadol present in the capsules has not been specified. Therefore, it cannot be conclusively determined that the contraband allegedly recovered from the possession of the accused/petitioners constitutes a commercial quantity so as to attract the provisions of Section 22(c) of the NDPS Act.

4. In this context, he relied on the decision of the Hon'ble Supreme Court in E. Micheal Raj vs. Intelligence Officer, Narcotics, reported in (2008) 5 Page No.# 3/12

SCC 161, wherein it was held that, for determining whether the seized contraband is of commercial quantity, "the purity and actual content of the narcotic drugs in a mixture or capsule must be determined", gross weight alone cannot be the basis.

5. Accordingly, he submitted that, without proper determination of the Tramadol content in the capsules allegedly recovered from the possession of the accused/petitioners, the contraband may not be considered of commercial quantity. Thus, considering the length of detention already undergone by the accused/petitioners, they may be enlarged on bail.

6. Dr. Gogoi, further submitted that the grounds of arrest was not communicated to the present petitioners in the Arrest Memo as well as in the Notice issued under Section 47 of BNSS, which is mandatorily required and non- compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He further submitted that the accused/petitioners were arrested on 11.10.2024, but due to non-mentioning of grounds of arrest in the Arrest Memo as well as in the Notice issued under Section 47 of BNSS, the arrest or the remand itself is illegal. 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 them at the time of their 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 this context also, Dr. Gogoi, learned counsel for the petitioners, cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

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(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

8. More so, he submitted that even in the case of commercial quantity and the rigor of Section 37 NDPS Act, 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 47 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 petitioners are entitled to bail.

9. Ms. Bora, learned Additional Public Prosecutor, submitted that the alleged contraband was recovered from the conscious possession of the accused/petitioners. She further submitted that the case is at the initial stage of trial; although the charge sheet has already been filed, the charge is yet to be framed. Therefore, she contended that this is not a fit case for granting bail to the accused/petitioners solely on the ground of the length of their detention. She further submitted that although there may not be detailed grounds of arrest mentioned in the Arrest Memo or in the notice issued under Section 47 of the BNSS, the accused/petitioners were well aware of the grounds of their arrest. Relying on decisions rendered by a Co-ordinate Bench of this Court, she submitted that bail had been rejected in similar cases where the petitioners were found to be sufficiently informed of the grounds of arrest.

10. In that context, she relied on the decisions passed by the Co-ordinate Bench in the following bail applications and accordingly raised objections to the grant of bail to the present accused/petitioners:

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i. Bail Application No. 1621/2025 [relied on paragraphs 7, 10, 11, 15, 16 and 18];

ii. Bail Application No.1448/2025 and

iii. Bail Application No.2656/2024.

11. Further, Ms. Bora 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 petitioners are innocent, they have not committed such offence nor there is any probability of committing similar kind of offence if they are 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/petitioners on bail at this stage.

12. After hearing the submissions made by the learned counsels for both sides, I have perused the annexures filed along with the petition, more particularly, the Arrest Memos, the notice issued to the present accused/petitioners under Section 47 of the BNSS, and the bail orders passed by the Co-ordinate Bench of this Court,which has been relied by the learned Additional Public Prosecutor.

13. From the bail orders passed by the Co-ordinate Bench, it is seen that the grounds of arrest were mentioned in the Arrest Memos issued to the accused persons in Bail Application No. 1448/2025 and Bail Application No. 1621/2025 which bears the signature of the accused/person which transpires that they Page No.# 6/12

have the knowledge regarding the grounds of arrest. Similarly, in Bail Application No. 2656/2024, although the grounds were not specifically detailed, they were nonetheless mentioned in the Arrest Memo issued to the petitioner.

Accordingly, the Co-ordinate Bench opined that the grounds of arrest were duly communicated to the accused persons in those cases. However, in the present case, it is evident that the grounds of arrest are not mentioned at all in the Arrest Memo or in the notice issued under Section 47 of the BNSS. Except for the names, addresses, and case numbers, no specific grounds of arrest, as required under Section 47 of BNSS are provided. As such, it is clear that there has been non-compliance with the provisions of Section 47 of the BNSS, resulting in a violation of Article 22(1) of the Constitution of India. It is, therefore, an admitted position that the grounds of arrest were not communicated to the accused/petitioners or to their family members at the time of arrest, which is not only a statutory right but also a constitutional mandate. Every arrested person must be informed of the grounds of arrest at the time they are taken into police custody. Further, the issue raised by the learned counsel for the petitioners regarding the quantity of Tramadol in the contraband allegedly recovered from their possession may be discussed and decided at the time of final hearing.

14. It is the contention of the petitioners that non-communication of the grounds of arrest is in violation of Section 47 of BNSS rendering the arrest and subsequent remand of the accused/petitioners invalid. The accused/petitioners has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest has 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/petitioners would Page No.# 7/12

vitiate the arrest even if the case has been charge-sheeted.

15. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioners, 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.

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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 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."

16. 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 Page No.# 9/12

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."

17. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memos, Inspection Memo as well as in the Notice issued to the present accused/petitioners under Section 47 of BNSS and except the name, address and the case number, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of 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 Page No.# 10/12

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 petitioners 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.

18. 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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19. In view of the entire discussions made above, it is the opinion of this Court that the length of detention undergone by the accused/petitioners may not be a good ground for considering their bail application at this stage as the case has already been charge sheeted. However, considering the fact that the grounds of arrest were not communicated to the petitioners or mentioned in the Arrest Memos as well as in the Notices issued to the present accused/petitioners under Section 47 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioners.

20. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each 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 Goalpara, the accused/petitioners, namely, 1. Sofiqul Islam @ Shafiqul Islam Mondal, 2. Baharul Islam and 3. Zunait Hussain, be enlarged on bail, subject to the following conditions:

(i) that the petitioners shall appear before the Court of learned Special Judge Goalpara, on each and every date to be fixed by the Court;

(ii) that the petitioners 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 them from disclosing such facts to the Court or to any police officer;