Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 6 May, 2025

                                                                        Page No.# 1/7

GAHC010082932025




                                                                  2025:GAU-AS:5618

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

                               Case No. : Bail Appln./1241/2025

            MD RAJIKUL ISLAM@ RAJIKUL ISALAM
            SON OF MD MAMTAJ ALI, RESIDENT OF VILLAGE AKA BAASTI BANGALI,
            P.S. CHARIDUAR,
            DIST. SONITPUR, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE LEARNED PP, ASSAM



Advocate for the Petitioner   : MR. R BARUAH,

Advocate for the Respondent : PP, ASSAM,
                                                                             Page No.# 2/7

                                 BEFORE
                  HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                  ORDER

06.05.2025

Heard Mr. R. Baruah, learned counsel for the petitioner. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor for the State respondent.

2. This application under Section 483 of BNSS, praying for grant of bail to the accused/petitioner, who has been languishing in jail hazot since 11.03.2025 in connection with Chariduar P. S. Case No. 28/2025 [corresponding to GR Case No. 400/25] registered under Sections 20(b) (ii) (B) of NDPS Act.

3. The Case Diary was called for; however, inadvertently, the office took steps to call for the scanned copy of the Case Diary, which has already been received. I have perused the same.

4. In this regard, Mr. Baruah, learned counsel for the petitioner, has submitted that the accused/petitioner has been in custody for the last 56 days, and that only 6.542 kgs of suspected ganja was recovered from the possession of the co-accused. Nothing was recovered from the possession of the present accused/petitioner. He got arrested in connection with this case only on the basis of the statement of the co-accused recorded under Section 67 of NDPS Act. However, it is the settled position that the statement of the co-accused or the voluntary statement recorded under Section 67 of the NDPS Act is not admissible at the time of trial or that cannot be the basis for conviction as laid down by the Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1], wherein it has been held that the statement of the co-accused person recorded under Section 67 NDPS Act is not tenable in the eye of law and it cannot be the basis of the conviction.

5. Mr. Baruah further submitted that no proper grounds of arrest were mentioned in the Notices issued to the accused/petitioner or to his family members/relatives under Page No.# 3/7

Sections 47 and 48 of the BNSS, which is mandatorily required. He contended that such non-compliance amounts to a violation of Articles 21 and 22(1) of the Constitution of India. 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 him at the time of his 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. He further submitted that the accused/petitioner has been in custody since 11.03.2025, and therefore, the IO got sufficient time for custodial interrogation. Accordingly, considering the length of detention, his prayer for bail may be considered.

6. In this context also, Mr. Baruah, learned counsel for the petitioner, cited the following decisions:

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

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

7. Mr. Goswami, learned Additional Public Prosecutor, submitted that, admittedly, the recovery was not made from the possession of the accused/petitioner. However, he was arrested based on the statement made by the co-accused during the course of investigation. He further submitted that although there has been substantial progress in the investigation, the IO has not yet obtained the FSL report. He also submitted that there may not be any written communication for grounds of arrest, but from the materials available in the case record, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, he raised objection in granting bail to the accused/ petitioner.

8. After hearing the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the case diary and the annexures filed along Page No.# 4/7

with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 47 of BNSS. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notice as well as the Arrest Memo. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his 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 he was taken into custody of police.

9. It is the contention of the petitioner 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/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.

10. 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 Page No.# 5/7

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."

11. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held Page No.# 6/7

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."

12. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notice issued to the present accused/petitioner under Section 47 of BNSS 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 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 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 Page No.# 7/7

is vitiated and it may be a sufficient ground to consider her 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.

13. In view of the entire discussions made above, it is the opinion of this Court that considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Notices issued to the present accused/petitioner under Section 47 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

14. Accordingly, it is provided that on furnishing a bond of Rs. 20,000/- (Rupees Twenty thousand) only with one surety of like amount to the satisfaction of the learned Special Judge, Sonitpur, Tezpur, the accused/petitioner, namely, Md. Rajikul Islam @ Rajikul Isalam, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall make himself available for interrogation by the Investigating Officer as and when required;

(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; and