Gauhati High Court

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

                                                                          Page No.# 1/11

GAHC010100722025




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

                               Case No. : Bail Appln./1573/2025

            ETI DEBBARMA
            S/O- JAKAT RAM DEBBARMA.
            R/O- VILL.-07 KITI CHANDRAPARA,
            P.O- TAMAKARI, P.S.- SIDHAI MOHONPUR. DIST.- WEST TRIPURA,
            TRIPURA.

            2: RAMEN DEBBARMA
             S/O- KIRAN DEBBARMA

            R/O- VILL.- DUMARAKARI

            P.O- TAMAKARI
             P.S.- SIDHAI MOHONPUR

            DIST.- WEST TRIPURA
            TRIPURA

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM.



Advocate for the Petitioner   : MR. M KHAN, MS J AKTAR,MR A K DAS

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                     HONOURABLE MRS. JUSTICE SHAMIMA JAHAN

                                           ORDER

Page No.# 2/11

Date : 03.06.2025

1. Heard Mr. M Khan, learned counsel for the petitioners. Also heard Mr. P.S Lahkar, learned Additional Public Prosecutor for the State of Assam.

2. This is an application under Section 483 of the B.N.S.S, 2023 seeking grant of bail by the petitioner/accused persons namely, EtiDebbarma and Ramen Debbarma, who were arrested on 11.02.2024, in connection with Bongaigaon G.R.P.S Case No. 12/2024 under Section 20(b)(II)(c)/29 of the NDPS Act.

3. The brief facts of the case is that the police of New Bongaigaon G.R.P.S, on the basis of a secret information regarding smuggling of cannabis by Bengaluru Humsafar Express running from Guwahati to Bongaigaon, carried out a search in the said train. During the search, 5 passengers were found with 4 bags in a suspicious manner. As such, the police searched the bags and found contrabands wrapped with round tape in 4 numbers of bags. More specifically, they found 1 maroon trolley bag containing 9.8 kgs of cannabis with 2 other co- accused, and 2 bags containing 4 kgs and 5.4 kgs of cannabis with the petitioners/accused persons. Yet another bag was recovered from another co- accused which weighed 9.5 kgs.

4. The police weighed the contrabands and found the total weight to be of 29 kgs approximately. After recovery, when the train stopped, the police got down from the train along with the accused persons, including the petitioners/accused persons with the recovered bags.

5. Thereafter, the police lodged an ejahar on 11.02.2024 and registered the FIR vide Bongaigaon GRPS Case No. 12/2024 under Section 20(b)(II)(c)/29 of the N.D.P.S Act.

6. The police arrested the accused persons and served the arrest Page No.# 3/11

memo upon them on the same day i.e. on 11.02.2024. The petitioners/accused persons were produced before the Jurisdictional Magistrate's Court and since then the petitioners/accused persons are inside the jail and accordingly, the bail application has been filed.

7. Mr. M Khan, learned counsel for the petitioners prays for bail mainly on the ground that the grounds of arrest were not served upon the petitioners/accused persons as required and as mandated under article 22(I) of the Constitution of India as well as by the Hon'ble Supreme Court in a catena of decisions.

8. Mr. M Khan, learned counsel for the petitioners submits that in the arrest memo, which was served on the day of his arrest, did not contain any grounds of arrest whatsoever. He also contends that the notice that was served under Section 50 of Cr.P.C (Section 47 of B.N.S.S) also did not contain any grounds of arrest communicated to the petitioners/accused persons.

9. In support of his claim, he placed the following decisions :

(I) Pankaj Bansal vs. Union of India reported in (2024) 7 SCC

576.

(ii) PrabinPurkayastha vs. State reported in (2024)8 SCC 254.

(iii) Vihaan Kumar vs. State of Haryana reported in (2025) SCC Online SC 269.

10. Mr. M Khan, learned counsel for the petitioner has also placed an Order passed by a co-ordinate Bench, in respect of the other 2(two) accused persons who were also arrested along with the petitioners/accused persons, by annexing the same as annexure 9 in the bail petition wherein the co-ordinate Bench had granted bail to the petitioners on grounds of non-service of grounds Page No.# 4/11

of arrest.

11. Mr. M Khan, learned counsel for the petitioner had also argued that in Pankaj Bansal's case (Supra), the Hon'ble Supreme Court had directed, more specifically in paragraph 42 that a copy of written grounds of arrest should be furnished to the arrested person, as a matter of course and without exception. He, as such, submitted that since the arrest, in the present case,is after the aforesaid judgment of the Hon'ble Supreme Court, the grounds of arrest should have been furnished to the accused persons without exception.

12. He also stated that pursuant to the judgment which was delivered by the Hon'ble Supreme Court in Pankaj Bansal's case (Supra), in PrabirPurkayastha's case, the Hon'ble Supreme Court had reiterated that grounds have to be furnished to the accused persons.Thereafter, in Vihaan Kumar's Case also, Mr. M Khan, learned counsel for the petitioners submitted that serving of grounds of arrest is made mandatory.

13. On the other hand, Mr. P.S Lahkar, learned Additional Public Prosecutor for the State of Assam, by making extensive arguments at the bar, placed, at the outset, Article 22(I) of the Constitution of India and argued that the requirement is to inform the accused persons and to bring to his knowledge, the reasons as to why he was arrested. He referred to the following cases :

(I) State of M.P vs. Sobha Ram and Others reported in AIR 1966 SCC 1910.

(ii) The Order passed by the co-ordinate Bench of the Hon'ble Gauhati High Court in Bail Application No. 1167 of 2025 dated 28.05.2025.

(iii) Judgment passed by Hon'ble Supreme Court in KasireddyUpendrareddy vs. State of Andhra Pradesh and Others in Criminal Page No.# 5/11

Appeal No. 2808 of 2025.

14. Mr. P.S Lahkar, learned Additional Public Prosecutor for the State of Assam contended that as long as the petitioners/accused persons are aware as to what offence they have committed and were informed of the said offence, as well as the right to be defended by a counsel for filing a bail application or fortaking other course of law, the requirement of serving grounds of arrest is fulfilled as provided under Article 22(I) of the Constitution of India. He placed the notice that the petitioners/accused persons had annexed and showed the contents therein, in support thereof.

15. As such, Mr. P.S Lahkar, learned Additional Public Prosecutor for the State of Assam submitted that there is enough compliance of the law and the bail may not be granted to the petitioners/accused persons. He also submitted that the petitioners/accused persons were caught red-handed with the contrabands and as such, they knew the offence they had committed.

16. I have given anxious consideration to the issue at hand and I have perused the materials available on record. The issue of non-serving of grounds of arrest has been an important burning issue before the Hon'ble Supreme Court as well as the Hon'ble High Courts.

17. The main provision that holds the field is article article 22(I) of the Constitution of India which is reproduced below :

"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

18. A bare perusal of the said article reveals that the arrested person Page No.# 6/11

cannot be detained in custody without informing him the grounds of his arrest, at the earliest, and he should also be informed that he has the right to be defended by a legal practitioner. This shows that serving of grounds of arrest, after the person is arrested, is mandatory.

19. Thereafter, the Hon'ble Supreme Court while delivering the judgment in Pankaj Bansal's Case (Supra) had categorically held in paragraph 42 that written grounds of arrest should be furnished to the arrested person, as a matter of course, and without exception. The Hon'ble Supreme Court has given 2 reasons for the said course of action :

(I) If the grounds of arrest are stated orally or read out to the arrested person without anything further and the said fact is disputed by the arrested person, then in that case, the requirement of communicating the grounds would fail.

(ii) The written grounds of arrest are required so that the arrested person can seek legal counsel and present a case before the Court and seek bail.

20. It is seen from the said case that giving grounds of arrest in written form was mandated by the Hon'ble Supreme Court after the said judgment. As such, it can be said that furnishing of grounds of arrest in written form has to be

mandatorily given post 3rd of October, 2023 i.e. when the aforesaid judgment was delivered.

21. The said recourse to law was further reiterated in PrabinPurkayastha's case (Supra), wherein, service of grounds were again stated to be mandatory. In paragraph 48 of the said judgment, the Hon'ble Supreme Court made a distinction between reasons of arrest and grounds for Page No.# 7/11

arrest. The reasons for arrest which is indicated in the arrest memo are purely formal parameters which is to prevent the accused persons from committing any further offence or from causing any disappearance of evidence or tampering with such evidence or making inducement,threat, promise to any person acquainted with the facts of the case etc. Whereas, grounds of arrest would include all details that the Investigating Officer possessed, which necessitated the arrest of the accused.

22. The Hon'ble Supreme Court, thereafter, explained as to what the grounds of arrest should contain. It is stated in no unclear terms that the grounds of arrest, in writing, must convey to the accused persons, all basic facts on which he was arrested. The Hon'ble Supreme Courtfurther observed that grounds of arrest are personal to the accused and cannot be equated with reasons of arrest.

23. Thereafter, the Hon'ble Supreme Court in Vihaan Kumar's Case (Supra) had observed, more particularly, in paragraph 19 of the said judgment that the requirement under Section 50 of Cr.P.C where the option is given to communicate the grounds of arrest to the person arrested cannot have the effect of diluting article 22(I) of the Constitution of India.

24. The Hon'ble Supreme Court concluded that the requirement of informing the person arrested of the grounds of arrest is a mandatory requirement in view of article 22(I) of the Constitution of India. It was further observed that information of the grounds of arrest must be provided to the arrested person, in such a manner that sufficient knowledge of the basic facts constituting the grounds, are imparted and communicated to the accused person and in the language which he understands. Since Judgments are retrospective in nature, the same applies to the instant case.

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25. It was further held that non-compliance of the same would violate fundamental rights of the accused guaranteed by the Constitution of India and when there is such a violation, it is the duty of the court to forthwith release the accused person. Further, the Hon'ble Supreme Court in the subsequent decision of KashiramUpendrareddy(Supra) had held that although it is not necessary for the authorities to furnish full details of the offence, but the information should be sufficient to enable the arrested person to understand as to why he has been arrested.

26. In the case at hand, it is seen that the petitioner was arrested on a search operation from inside the train along with the bags by the police. On the same day of arrest, the accused persons were served with the arrest memo wherein only the name and particulars of the arrestee, the case number, the place of arrest, the date and time of arrest are mentioned.

27. In the said arrest memo, it is crystal clear that no grounds of arrest have been mentioned. In the notice served under Section 50 of the CrPC, furnished on the same day of arrest to the petitioners, the following statement was mentioned :

"You are, hereby, informed that you are under arrest in connection with the above reference case as non-bailable to the police. So, you are forwarded to the Hon'ble Chief Judicial Magistrate, Bongaigaon. You may submit petition before Hon'ble Court for your bail".

28. It is clear from the said statements that the petitioners were informed about the case that was registered and under what provisions it was registered. He was also informed that he can submit a petition before theHon'ble Court for bail. Nothing more was informed to him, in contrary to what has been held by the Hon'ble Supreme Court, in the aforesaid decisions Page No.# 9/11

that a person arrested should be made aware of the details that is in the hands of the Investigating Officer which necessitated the arrest thereof. The information should be such that the arrested person understands as to why he has been arrested.

29. Further, they should be informed in their own language that they understand. Simply furnishing a document with the case number and the provisions of law under which he was arrested and informing him the right that he acquires, would not be sufficient in law.

30. In the justice delivery system of our country, every arrested person is innocent unless he is proved guilty. As such, he has every right to be informed as to why he was arrested.

31. The Hon'ble Supreme Court, in a further judgment, passed in Directorate of Enforcement vs. Subhash Sharma (2025) SCC Online SC 240 had held that once a Court, while dealing with bail application finds that the fundamental rights of the accused under Article 21 and 22 of the Constitution of India are violated, it is the duty of the Court dealing with the bail application to release the accused on bail because in such a case, arrest stands vitiated. When arrest stands vitiated, bail cannot be denied on the grounds of non-fulfillment of twin test under the P.M.L.A Act. The same can be applied,in the case at hand, since similarly under Section 37 of the N.D.P.S Act twin requirements are provided for.

32. Under such backdrop, this Court, by following the observations of the Hon'ble Supreme Court enunciated above, is inclined to grant bail to the petitioners/accused persons.

33. Accordingly, the petitioners/accused persons, above named, shall be Page No.# 10/11

released on bail, in connection with the aforementioned case, on furnishing bail bond of Rs 1,00,000/- each (Rs One Lakh each) with 2(two) sureties each of the like amount, out of which one of the surety should be a government servant of the State of Assam and to the satisfaction of the Ld. Special Judge, Bongaigaon.

34. The direction of bail is further subjected to the conditions mentioned herein below :

(I) The petitioners/accused persons shall appear before the Trial Court on all subsequent dates.

(ii) The petitioners/accused persons shall not leave the territorial jurisdiction of Ld. Special Judge, Bongaigaon, Assam without prior permission from the said Trial Court.