Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 6 May, 2025

                                                                        Page No.# 1/9

GAHC010094192025




                                                                  2025:GAU-AS:5623

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

                               Case No. : Bail Appln./1432/2025

            MAMON MIAH @ MAMAN MIAH
            S/O- LATE FUL MIAH.
            R/O- KOLOMKHET.
            P.S- SONAMURA,
            DIST.- SEPAHIJALA
            TRIPURA.

            2: KHYERUL HOSSOIN @ KHAYERUL HOSSAIN
             S/O- KASEM MIAH

            R/O- INDIRANAGAR.
            P.S- MELAGARH.
            DIST.- SEPAHIJALA

            TRIPURA

            3: NABIR HUSSAIN
             S/O- HASEM MIAH.
            R/O- TELKAJTA.
            P.S- MELAGARH.
            DIST.- SEPAHIJALA

            TRIPURA

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM



Advocate for the Petitioner   : MR H R A CHOUDHURY, MR. I U CHOWDHURY

Advocate for the Respondent : PP, ASSAM,
                                                                        Page No.# 2/9




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                     ORDER

Date : 06-05-2025

Heard Mr. H. R. A. Choudhury, the learned Senior Counsel assisted by Mr. I. U. Chowdhury, learned counsel for the petitioners. Also heard Mr. R.J. Baruah, the 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. 64/2024 arising out of Badarpur P. S. Case No. 169/2024, under Sections 22(C)/25/29 of NDPS Act, which is pending before the Court of learned Special Judge, Sribhumi.

3. It is submitted by Mr. Choudhury, the learned Senior Counsel, that the accused/petitioners are innocent and they are no way involved in the alleged offence. They are only the passenger of the said vehicle from where the contraband was recovered. They were arrested on 13.06.2024 and since then they are in custody. Case is already being charge-sheeted on 09.11.2024, but charge could not be framed till date as one of the co-accused is still absconding and for which the charge is also could not be framed till date. Therefore, he submits that, considering the length of detention already undergone by the accused/petitioner, his prayer for regular bail may be considered at this stage.

4. He further submitted that, at the time when the petitioner was shown as arrested in connection with this case, the grounds for arrest were not mentioned in the Arrest Memo or the Notices issued to the petitioner, nor to his Page No.# 3/9

family members/relatives under Section 50 Cr.PC, corresponding to Section 47/48 of the BNSS, on the basis of which he was shown to have been arrested in connection with this case. He contended that such non-compliance constitutes a violation of Articles 21 and 22(1) of the Constitution of India, as the disclosure of arrest grounds is a mandatory legal requirement. He accordingly submitted that all the full particulars of the offence alleged to have been committed by the accused should be communicated to them at the time of their arrest. Failure to do so would violate the mandate of the Constitution of India as well as statutory provisions, potentially vitiating the arrest itself.

5. In this context, Mr. Choudhury, learned Counsel for the petitioner, also 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.

6. Mr. Choudhury also 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 or Notice under Section 50 Cr.PC, corresponding to Section 47/48 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 petitioner is entitled to bail.

7. Mr. Baruah, the learned Additional Public Prosecutor, has submitted that there are sufficient incriminating materials available against the Page No.# 4/9

accused/petitioners and the contraband were recovered from the conscious possession of the present accused/petitioners wherein 23.361 kg of Yaba tablets were recovered which is a commercial quantity. Mr. Baruah further submitted that the present petitioners are not only the occupants or passengers of the said vehicle but during investigation it has also come to light that these petitioners are fully involved in the alleged offence and they were supposed to deliver contraband to one Saif Uddin for onward transmission. Therefore, he submits that the issue of an Arrest Memo and Notice under Section 50 Cr.PC, corresponding to Section 47/48 of the BNSS Act does not arise. Hence, the communication of the grounds for arrest or the issuance of a notice under Section 50 Cr.PC, corresponding to Section 47/48 is not necessary. He further submitted that although there may not be any written communication regarding the grounds for arrest, the materials available in the case record clearly indicate that the accused were informed of the grounds for arrest orally during the investigation, and hence, he raised objections to granting bail to the accused/petitioners.

8. Mr. Baruah, the learned Additional Public Prosecutor, 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, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, he 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 Page No.# 5/9

this stage.

9. From the submissions made by the learned counsels for both sides, it is evident that the IO did not follow any procedure to inform the accused/petitioners of the grounds for his arrest, nor was any notice issued him or his family members in connection with the arrest in the present case. Furthermore, based on the FIRs of both cases and the sections under which they were registered, it is clear that these are similar offences under which the petitioners were shown to have been arrested. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioners or to his family members at the time of their 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.

10. It is the contention of the petitioners that non-communication of the grounds of arrest is in violation of Section 50 Cr.PC, corresponding to Section 47/48 of BNSS, rendering the arrest and subsequent remand of the accused/petitioners invalid. The accused/petitioners have 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/petitioners would vitiate the arrest.

11. 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, 21 & 48 of the judgment as under:

Page No.# 6/9

"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."

12. 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 Page No.# 7/9

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."

13. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioners under Section 50 Cr.PC, corresponding to 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 50 Cr.PC, corresponding to 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 petitioners is vitiated and it may be a sufficient ground to consider their 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.

Page No.# 8/9

14. 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."

15. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 Cr.PC, corresponding to Section 47/48 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 50 Cr.PC, corresponding to Section 47/48 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.

16. From the submissions made by both sides and from the documents available in the case record, it is evident that no grounds for the arrest were communicated to the petitioners, which constitutes a violation of Articles 22(1) of the Constitution of India. Therefore, considering the fact that the grounds for Page No.# 9/9

arrest were neither communicated to the petitioners nor mentioned in the Notice issued to him under Section 50 Cr.PC, corresponding to Section 47/48 of the BNSS, this Court finds it appropriate to grant the privilege of bail to the accused/petitioners.

17. 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, Sribhumi, the accused/petitioner, namely, [1] Mamon Miah @ Maman Miah, [2] Khyerul Hossoin @ Khayerul Hossain and [3] Nabir Hussain, be enlarged on bail, subject to the following conditions:

(i) that the petitioners shall appear before the Court of learned Special Judge, Sribhumi, 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;