Gauhati High Court

Bail Appln./1122/2025 on 5 May, 2025

  GAHC010077122025




                                            2025:GAU-AS:5547

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



                 BAIL APPLICATION NO.1122 OF 2025

                1. Moniruddin Mondal,
                   S/o- Tohor Ali Mondal,
                   R/o- Vill: Kheluapara Pt-II,
                   P.S.- Jogighopa,
                   District- Dhubri, Assam,
                   PIN-783371.

                 2. Joynuddin Mondal,
                    S/o- Tohor Ali Mondal,
                    R/o- Vill: Kheluapara Pt-II,
                    P.S.- Jogighopa,
                    District- Dhubri, Assam,
                    PIN-783371

                                               .......Petitioners

                                    -Versus-

                     The State of Assam,
                     Represented by Public Prosecutor, Assam.

                                             .......Respondent




                                                   Page 1 of 12
                         -BEFORE-

      HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Petitioner(s)    : Mr. B. Ali SK, Advocate.

For the Respondent(s)    : Mr. K. Baishya, learned Additional
                           Public Prosecutor, Assam.

Date of Hearing          : 05.05.2025.

Date of Judgment         : 05.05.2025

                        ORDER (ORAL)

Heard Mr. B. Ali SK, learned Counsel appearing for the petitioners. Also heard Mr. K. Baishya, learned Additional Public Prosecutor appearing for the State respondent.

2. This application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "BNSS") seeking grant of regular bail to the accused/petitioners i.e. Moniruddin Mondal and Joynuddin Mondal, who have been arrested on 03.08.2024 in connection with Special Case No.12/2025 arising out of Gauripur P.S. Case No.223/2024 registered under Section 22(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is pending before the learned Special Judge cum Additional District & Sessions, Dhubri.

3. The brief facts of the case is that on 02-08-2024 at about 11.32 pm, some miscreants in one Bolero Pickup vehicle carrying Narcotics drug/tablets were coming from

Golakganj side towards Balajan side. Accordingly, a G.D. Entry was made and an operation team proceeded to the location. After reaching, they were waiting at the location. It is further alleged that after sometime when the said vehicle came, they detained the vehicle and apprehended the two accused/petitioners. It is further alleged that after searching the vehicle by following the due procedure, the following items were recovered from the said vehicle, which was used by the apprehended accused/petitioners: -

(1) Total 24 Nos. of plastic bags containing each bag 25 Nos. of phynsedyl (Cough Syrup) suspected to have codeine phosphate. Total 24x25=600 Nos.

bottle. All the bottle having: batch No: PHD24196, Mfg date: Jun, 2024, Expiry date: Aug, 2025

(2) One white colour Bolero Max pickup bearing registration No. AS17C-7304.

(3) One Sale Certificate in the name of Moynuddin Mondal bearing invoice No. INV24A001433 dtd 19 Oct, 2023, Chassis No. MARA2TTKPH71605, Engine No. 46449.(4) One knife with plastic handle length approx. 1 foot.

(5) One OPPO mobile handset bearing IMEI No. 868938065275598/80, Mobile No. 8099193727.

(6) One OPPO mobile handset bearing IMEI No. 860838-67078396/88, Mobile No. 9365667800 and 8134886287.

(7) Three Nos of white colour Plastic bags in which the seized Narcotics drugs is found.

4. Accordingly, the recovered contraband articles were seized by following due procedure in law and thereafter the case was registered. The accused/petitioners were accordingly arrested in connection with the said case on 03.08.2024 and produced before the learned Magistrate's Court on 04.08.2024 and thereafter, remanded to judicial custody and since then they have been languishing in jail. Hence, the instant bail application has been filed.

5. Mr. B. Ali SK, learned Counsel appearing for the petitioners submits that submits that the arresting authority while arresting the petitioners has not informed the grounds of arrest to them and as such, the fundamental and constitutional Rights guaranteed to them under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the petitioners are entitled to be released forthwith.

6. Per contra, Mr. K. Baishya, learned Additional Public Prosecutor, Assam submits that on scrutiny of the materials made available through the case diary, there is no record of the grounds of arrest being intimated/informed to the accused/petitioners at the time of his arrest.

7. I have considered the submissions advanced by the learned counsels for both the parties and also perused the materials available on record.

8. The only ground urged in this bail application is as regard non-compliance of the Constitutional and fundamental rights of the petitioner guaranteed under Article 21 and 22(1) of the Constitution of India. Apt to refer to Article 21 and 22(1) of the Constitution of India, which reads as hereunder:-

"21. Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure established by law.

22. Protection against arrest and detention in certain cases.--(1) 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."

9. Perusal of the aforesaid provision, it is apparent that an arrestee has a constitutional and fundamental right under the Constitution of India to be informed about the grounds of his arrest at the time of his arrest.

10. In the present case, apt to refer to the notices issued to the accused/petitioners under Section 47 of the BNSS., which reads as hereunder: -

"NOTICE

U/S: 47 BNSS

(Information to arrested person on grounds of

arrest and right to bail)

Ref: GPR PS Case NO-223/24 u/s- 22(c)/29 of NDPS Act

To,

Joynuddin Mondol, 29 yrs

S/o- Tohor Ali Mondol

R/o- Kheluapara PT II

PS- Jogighopa

Dist- Bongaigaon(Assam)

You are hereby informed that you are under arrest in connection with above reference case which is non bailabe to police. So you are forwarded to the hon'ble court. You may submit petition before the hon'ble court for your bail.

Signature of arrestee Signature of arresting officer

NOTICE

U/S: 47 BNSS

(Information to arrested person on grounds of

arrest and right to bail)

Ref: GPR PS Case NO-223/24 u/s- 22(c)/29 of NDPS Act

To,

Moniruddin Mondol, 25 yrs

S/o- Tohor Ali Mondol

R/o- Kheluapara PT II

PS- Jogighopa

Dist- Bongaigaon(Assam)

You are hereby informed that you are under arrest in connection with above reference case which is non bailabe to police. So you are forwarded to the hon'ble court. You may submit petition before the hon'ble court for your bail.

Signature of arrestee Signature of arresting officer"

11. Perusal of the aforesaid notices indicates that no facts whatsoever constituting the grounds of arrest are reflected in the said notices except that they have been arrested in connection with the case under reference.

12. That apart, it appears that the notice under Section 48 of the BNSS was also sent to one Joynal Abedin, who is the elder brother of the two accused/petitioners, which reads as hereunder: -

"NOTICE

U/S: 48 BNSS, 2023

(Information to friend/relative or nominated

persons of arrestee)

To,

Joynal Abedin, 30 yrs

S/o- Tohor Ali Mondol

R/o- Kheluapara PT II

PS- Jogighopa

Dist- Bongaigaon(Assam)

Sir/Madam You are hereby informed that the following person is arrested in connection with the Case no and Section of law referred below: -

              Name & Address of the        Case          no    with
             arrested person              section of law or
                                          GDE ref
             Moniruddin Mondol, 25        GPR PS Case No-
             years                        223/24              u/s-
             S/o- Tohor Ali Mondol        22(c)/29      of    NDPS
             R/o- Kheluapara PT II        Act
             PS Jogighopa
             Dist-        Bongaigaon
             (Assam)

Date & Time of arrest:-On 03/08/2024 at 3.00 PM

Place of Arrest:- Gauripur PS

Signature of arresting officer:-

Camp:- Gauripur

Signature of Arrestee:-"

13. Perusal of the aforesaid notice under Section 48 of the BNSS also indicates that no information whatsoever as regards the offence or the grounds of arrest has been intimated to the elder brother of the accused/petitioners.

14. It appears from the materials placed before this Court that there are no materials available in the case record to indicate that the grounds of arrest have been informed to the petitioners at the time of their arrest.

15. There is no doubt that the requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Constitution of India. Non-compliance of Article 22(1) will

be a violation of the constitutional and fundamental rights guaranteed by the said Article. That apart, it will amount to a violation of Article 21 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail. In fact, it is the duty of the Court to forthwith order the release of the accused when a violation of Article 22(1) is established.

16. Reference is made to the decision of the Apex Court in the case of Vihaan Kumar Vs State of Haryana and Anr., reported in (2025) SCConline SC 269. Paragraph 21 of the aforesaid decision is reproduced hereunder for ready reference:

"21. Therefore, we conclude:

a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

b) The 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 is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirernents of Article 22(1);

d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will

amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated.

Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

f) 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 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."

17. Reading of the aforesaid judgment, it is abundantly clear that the information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts of the case is imparted and communicated effectively to him and non compliance of the same will be a violation of the fundamental rights of the accused guaranteed under Article 22(1) of the Constitution of India.

18. In the present case, there is nothing in the case diary/case record/materials available on record to indicate that grounds of arrest have been communicated to the petitioners. Therefore, it is absolutely clear that the

grounds of arrest was not informed to the petitioners at the time of their arrest, hence, the arrest of the petitioners is totally illegal. As such, the arrest of the petitioners stands vitiated. That being so, the rigor of Section 37 of the NDPS Act, 1985 does not affect the power of this Court to grant bail to the petitioners. Therefore, further detention of the petitioners in the custody is totally unjustified.

19. In view of the aforesaid, this Court is of the considered opinion that the accused/petitioners are liable to be released forthwith. Accordingly, the accused/petitioners named above, shall be released on bail in connection with the aforementioned case on furnishing of a bail bond of Rs. 50,000/-(Rupees Fifty Thousand) each, with two sureties of like amount each, provided that one surety has to be a Government Servant, to the satisfaction of the learned learned Special Judge cum Additional District & Sessions, Dhubri under the following conditions: -

(i) that the accused/petitioners shall appear before the trial Court, on each and every date to be fixed by the Court;

(ii) that the accused/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 him from disclosing such facts to the Court or to any police officer;