Gauhati High Court

Page No.# 1/ vs The State Of Assam on 25 March, 2025

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GAHC010125052024




                                                                  2025:GAU-AS:3368

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

                               Case No. : Bail Appln./1831/2024

            RAHENA BEGOM
            W/O MOJIR UDDIN
            R/O VILL- KHAGAIL BAZAR
            P.S. AND DIST. KARIMGANJ, ASSAM



            VERSUS

            THE STATE OF ASSAM
            TO BE REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M A CHOUDHURY, MR A AHMED,MR. A AHMED

Advocate for the Respondent : PP, ASSAM,




                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                           ORDER

Date : 25.03.2025

Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent.

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2. This is an application under Section 439 of the Code of Criminal Procedure, 1973 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special (NDPS) Case No. 139/2023, arising out of Karimganj P.S. Case No. 816/2023, registered under Sections 21(b)/22(C)/25/29 of the NDPS Act, pending before the Court of learned Sessions Judge, Karimganj.

3. Scanned copy of the case record has already been received. Perused the same. Heard both sides.

4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the present accused/petitioner is innocent and she is no way connected in the alleged offence. On the day of incident, the police visited to the house of the present petitioner in search of her husband, but as her husband was not available in the house, the I.O. arrested her and brought her to the police station. Subsequently, her husband was also arrested in connection with this case. She was arrested on 22.10.2023 and since then, she is in custody and the charge-sheet was filed on 16.02.2024 wherein 11 (eleven) numbers of witnesses are being cited as prosecution witnesses. On 17.11.2025, the charges were framed and the first date of evidence was fixed on 12.02.2024. Accordingly, Mr. Choudhury submitted that the completion of the entire trial process will take considerable period as no witnesses could be examined by the prosecution till date. The accused/ petitioner is behind the bar for more than 1 (one) year 5 (five) months and hence, considering her long period of incarceration, she may be released on bail. It is further submitted by Mr. Choudhury that the petitioner has 2 (two) minor children and in absence of both the parents, there is none to look after the children and the father-in-law of the Page No.# 3/10

petitioner also expired on 04.05.2024 and thus, on humanitarian ground also, the present petitioner may be released on bail.

5. Mr. Choudhury further submitted that the present accused/petitioner has no criminal antecedent and she was arrested only on suspicion when the police came to their house in search of her husband. In that context, he also relied on the order passed by the Hon'ble Apex Court passed in the case of Biswajit Biswas Vs. The State of Assam [Special Leave to Appeal (Crl.) 16170/2024, arising out of final judgment and order dated 30.08.2024], wherein the bail was granted on the ground of period of detention, i.e. 1 ½ years, and also considering the fact that no criminal antecedent was there against the applicant therein. Accordingly, it is observed by the Hon'ble Apex Court that " considering the fact that he is the driver of the vehicle and he has no other criminal antecedents and also the period of incarceration of the petitioner, we are of the opinion that a case of bail is made out for the petitioner."

6. Mr. Choudhury also relied on another decision of Hon'ble Supreme Court passed in the case of Dhirendra Kr. Choudhury Vs. The State of Assam [Criminal Appeal No. 3379/2024], wherein also, it is observed that principle of right to speedy trial has to be considered while granting bail.

7. He further submitted that in another case passed in Jahid Hasan Munna Vs. The State of West Bengal [Special Leave to Appeal (Crl.) No(S). 3643/2024], the Hon'ble Supreme Court also granted bail considering the period of 11 (eleven) months incarceration and with observation that there was Page No.# 4/10

no criminal antecedent against the applicant.

8. Mr. Choudhury also raised the issue of non-mentioning of ground of arrest in the Notice issued to the present petitioner under Section 50 of Cr.P.C. He submitted that no ground is mentioned in the Notice issued to the petitioner under Section 50 of Cr.P.C. as well as in the Arrest Memo which may be considered as a ground for bail and in that regard, he also relied on 2 (two) decisions of Hon'ble Supreme Court passed in cases of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269, and Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

9. He further submitted that the Hon'ble Supreme Court in the case of Vihaan Kumar (supra) has 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. He accordingly emphasized on paragraph No. 16 of the said judgment, which reads 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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10. He further 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 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 and 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. Further, as per Section 50 of Cr.P.C., the person arrested should be informed about the grounds of arrest and her right to bail. But, here in the instant case, from the Arrest Memo as well as the Notice issued to the petitioner, it is seen that except the name and the case number, nothing has been mentioned in the Arrest Memo as well as in Notice regarding the grounds of arrest intimating the accused/petitioner or to her family members. 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 her at the time of her 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.

11. Mr. Baruah, learned Additional Public Prosecutor, submitted in this regard that it is an admitted fact that while issuing the Arrest Memo as well as the Notice under Section 50 Cr.P.C., the grounds of arrest were not intimated to the accused/petitioner, except the name of the present petitioner and the case number, other particulars were not mentioned. However, he submitted that the case is of commercial quantity and the case is still under the process of investigation and hence, he raised objection in granting bail to the Page No.# 6/10

accused/petitioner.

12. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the anneures filed along with the petition, more particularly, the Arrest Memo and the Notice issued to the present accused/petitioner. It is accordingly seen that while issuing the Arrest Memo as well as the Notice, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which she was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the Arrest Memo as well as in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to her family members at the time of her 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 she was taken into custody of police.

13. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding, to Section 47(1) of BNSS, 2023, 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.

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14. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph No. 19 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.

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."

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15. 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 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."

16. In the instant case also, from the discussion made above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as the Notice issued to the present accused/petitioner under Section 50 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 (2) 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 her bail Page No.# 9/10

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.

17. In view of the entire facts and circumstances as discussed above, viz-a-viz non-mentioning of grounds of arrest in the Arrest Memo as well as the Notice issued to the present accused/petitioner under Section 50 Cr.P.C., and also considering the period of incarceration and further considering the fact that the present petitioner has no criminal antecedents, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

18. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount to the satisfaction of the learned Sessions Judge, Karimganj, the accused/petitioner, namely, Rahena Begom, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Sessions Judge, Karimganj, 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;