Page No.# 1/13 vs The State Of Assam
2025 Latest Caselaw 215 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam on 6 May, 2025

                                                                       Page No.# 1/13

GAHC010094202025




                                                                  2025:GAU-AS:5621

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

                               Case No. : Bail Appln./1431/2025

            FAIZUL HAQUE @ FOYJUL HAQUE
            S/O- BADRUL ISLAM.
            R/O- ERALIGOOL AHMEDPUR.
            P.S- PATHARKANDI.
            DIST.- SRIBHUMI, KARIMGANJ, ASSAM.



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



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

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 06-05-2025

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

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2. This is an application under Section 483 of the BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection Special (NDPS) Case No. 108/2024 arising out of Badarpur P.S. Case No. 262/2024 u/s 22(c)/25/29 of NDPS Act.

3. It is submitted by Mr. Ahmed, the learned counsel for the petitioner, that the present accused/petitioner is innocent and is no way connected with the alleged offence. He got arrested in connection with the case on 14.10.2024 and the charge sheet has already been filed on 10.02.2025, but till date the charge could not be framed by the learned Court below. Mr. Ahmed further submitted that the petitioner is no way connected with the alleged offence and he was merely passenger of the said vehicle wherefrom the contraband was recovered. The recovery was not made from the conscious possession of the petitioner. He was arrested only on suspicion as he was one of the occupant of the said vehicle. Mr. Ahmed further submitted that the other co-accused persons are already granted bail by this Court and accordingly considering the case of the present petitioner in the same footing it is felt that the present petitioner may also be considered on the ground of parity.

4. Mr. Ahmed further submitted that at the time of arrest also the petitioner was not provided with any intimation regarding his arrest neither in the Arrest Memo nor at the time of issuing Notice u/s 47 BNSS. He also submitted that the family members were also not served with any notice u/s 48 of BNSS intimating grounds of arrest of the petitioner. He further submitted that as there is no ground of arrest mentioned in the said Arrest Memo as well as in the Notice Page No.# 3/13

under Sections 47 of BNSS, which itself is in violation of Article 21 & 22(1) of the Constitution of India. It is the mandate of the Constitution of India that while arresting the accused person, he as well as his family members should be intimated the grounds of arrest.

5. In this context, Mr. Ahmed, learned counsel for the petitioner, also cited the following decisions of Hon'ble Supreme Court:

(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. Ahmed 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 and the Notice under Section 47 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, submitted in this regard that there are sufficient incrimination materials that the present accused/petitioner is involved in the alleged offence. From the Forwarding Report it is seen that he is not merely the independent occupant of the vehicle Page No.# 4/13

but the contraband is received from the vehicle and prior information was received by the I/O regarding the carrying of contraband which is carried from Mizoram by the present accused/petitioner along with some co-accused persons. Mr. Baruah further submitted that it is not a case that the accused/petitioner was arrested subsequently but, the contraband was recovered directly from the conscious possession of the accused/petitioner.

8. Mr. Baruah further submitted that the case is of commercial quantity, and hence, the rigor of Section 37 NDPS Act will follow. Accordingly, he submitted that the case is still under investigation and hence, at this stage, it cannot be held that the accused person is not guilty of the offence or he will not commit similar kind of offence, if he is granted with the privilege of bail as required under Section 37 of the NDPS Act.

9. Mr. Baruah, learned Additional Public Prosecutor, further submitted that the mentioning of grounds of arrest in case of a person caught red handed was never argued before the Hon'ble Supreme Court nor was pursued or considered by the Hon'ble Supreme Court while passing the judgments in cases of Pankaj Bansal Vs. Union of India, reported in (2024) 7 SCC 576; Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254; and Vihaan Kumar Vs. State of Haryana & Anr., reported in 2025 SCC OnLine SC 269. In those cases, the Hon'ble Supreme Court has passed the judgments without considering the issue of necessity of informing the grounds of arrest to a person caught red handed and thus, applying the "doctrine of sub-silentio" it can be very well said that the judgments passed by the Hon'ble Supreme Court in Pankaj Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar Page No.# 5/13

(supra) are not a precedent so far the cases where the accused person got arrested red handed.

10. Accordingly, the learned Additional Public Prosecutor submitted that the bail prayer of the present petitioner cannot be considered at this stage on the ground of non-furnishing of the ground of arrest to the accused/petitioner. From the facts and circumstances of this case itself, it is sufficient to hold that the petitioner was well aware about the grounds when he was caught red handed along with the contraband. Accordingly, Mr. Baruah submitted that the bail prayer of the present petitioner may be rejected.

11. In this context, Mr. Ahmed, learned counsel for the petitioner, further relied on a decision of Hon'ble Supreme Court passed in the case of Jaseela Shaji Vs. Union of India & Ors., reported in (2024) 9 SCC 53 and basically relied on paragraph Nos. 20, 25 & 72 of the judgment, which read as under:

"20. It is immaterial whether the detenu already knew about their contents or not. In Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709: 1981 SCC (Cri) 592] it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents. In Mohd. Zakir v. Delhi Administration [(1982) 3 SCC 216: 1982 SCC (Cri) 695] it was reiterated that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguards enshrined in Article 22(5)."

25. This Court further went on to hold that it is immaterial whether the detenu already knew about their contents or not. This Court reiterated the position that it being a constitutional imperative for the detaining authority to give the documents relied on Page No.# 6/13

and referred to in the order of detention pari passu the grounds of detention. It has been held that there is no question of demanding the documents.

72. We may only reiterate what has been laid down in the earlier judgments of this Court that the Prison Authorities should ensure that the representations are sent to the Competent Authorities immediately after the receipt thereof. In the present era of technological development, the said representation can be sent through email within a day. It is further needless to reiterate that the Competent Authority should decide such representation with utmost expedition so that the valuable right guaranteed to the detenu under Article 22(5) of the Constitution is not denied. In the matters pertaining to personal liberty of the citizens, the Authorities are enjoined with a constitutional obligation to decide the representation with utmost expedition. Each day's delay matters in such a case."

12. Citing the above referred judgment, Mr. Ahmed, learned counsel for the petitioner, submitted that it is fit case wherein the bail can be granted to the present accused/petitioner on the ground of non-furnishing of grounds of arrest to them in the Arrest Memo as well as in the Notice under Section 47 of BNSS.

13. Mr. Ahmed also submitted that the issue of "caught red handed" is still pending before the Hon'ble Apex Court in Special Leave to Appeal (Crl.) No(s). 17132/2024, arising out of impugned final judgment and order dated 25.11.2024 in CRWP No. 3533 passed by the High Court of Judicature at Bomay (Mihir Rajesh Shah Vs. The State of Maharashtra & Anr.), which is already reserved by the Hon'ble Supreme Court for pronouncement of judgment, however the Hon'ble Supreme Court had already released the accused person on interim bail till disposal of the said appeal.

14. I have considered the submissions made by the learned counsels for both sides and also perused the materials available on record as well as the judgments cited by the learned counsels for both sides.

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15. From the submissions made by the learned counsels for both sides, it is seen that basically the issue raised by the petitioner is the non-communication of the grounds of arrest to the present petitioner in the Arrest Memo as well as in the Notice under Section 47 of BNSS. It is the admitted fact that the grounds of arrest were not communicated to the present petitioner as well as to his relatives as required under the provision of Sections 47 & 48 of BNSS. The Hon'ble Apex Court in the cases of Pankaj Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar (supra), as referred above, had discussed in detail in regards to non-communication of the grounds of arrest to the accused person and it is considered in various paragraphs of the judgments that non-compliance of same is in violation of Article 21 & 22(1) of the Constitution of India.

16. Further it is a fact that in the judgments, referred to hereinabove, the Hon'ble Supreme Court had not discussed the issue of caught red handed and no distinction was made in those judgments in regards to the arrest of the accused person. But, in paragraph No. 31 of the judgment of Vihaan Kumar (supra), the Hon'ble Supreme Court has held that all Courts, including the High Court, have a duty to uphold fundamental rights. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. For ready reference, paragraph No. 31 of the said judgment read as under:

"31. The learned Single Judge, unfortunately, has equated information given regarding the appellant's arrest with the grounds of arrest. The observation that the allegation of non- supply of the grounds of arrest made by the appellant is a bald allegation is completely uncalled for. All courts, including the High Court, have a duty to uphold Page No.# 8/13

fundamental rights. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. When a violation of Article 22(1) is alleged with respect to grounds of arrest, there can be possible two contentions raised: (a) that the arrested person was not informed of the grounds of arrest, or (b) purported information of grounds of arrest does not contain any ground of arrest. As far as the first contention is concerned, the person who is arrested can discharge his burden by simply alleging that grounds of arrest were not informed to him. If such an allegation is made in the pleadings, the entire burden is on the arresting agency or the State to satisfy the court that effective compliance was made with the requirement of Article 22(1). Therefore, the view taken by the High Court is completely erroneous."

17. In the 2nd part of the judgment of Vihaan Kumar (supra), it is also been observed by the Hon'ble Apex Court that "the purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person it to ensure that they would able to take immediate and prompt actions to secure the release of the arrested person as permissible under the law. The arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at the earliest."

18. The Hon'ble Supreme Court in the case of Directorate of Enforcement Vs. Subhash Sharma, reported in 2025 SCC OnLine 240, in paragraph No. 8 of the judgment, has observed that " once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such Page No.# 9/13

cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution."

19. Further, it is a settled proposition of law that the High Courts or the Subordinate Courts should decide the matters on the basis of law as it stands and unless specifically directed by the Hon'ble Supreme Court to await an outcome of a reference or review petition as the case may be. In that context also, a decision of Hon'ble Supreme Court can be relied on which was reported in 2023 SCC OnLine SC 114 (Union Territory of Ladakh Vs. Jammu and Kashmir National Conference), wherein in paragraph No. 35 of the judgment, it has been held as under:

"35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it."

20. So, from the discussion made above, it is seen that as on today, there is no such distinction made for consideration of bail in cases where the accused persons were caught red handed or subsequently arrested. But, the Hon'ble Apex Court in all the cases, as referred above, had expressed the view that non-

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furnishing of grounds of arrest to the accused person as well as to his family members, relatives or friends is in complete violation of mandate of Article 21 & 22(1) of the Constitution of India.

21. 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 Nos. 19, 21 & 48 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.

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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."

22. 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."

23. 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 Page No.# 12/13

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 his 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.

24. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the case is still under investigation. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo as well as in the Notice 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.

25. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only 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, Faizul Haque @ Foyjul Haque be enlarged on bail, subject to the following conditions:

(i) that the accused/petitioner shall appear before the Court of learned Special Judge, Sribhumi, on each and every date to be fixed by the Court;

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(ii) that the accused/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;

(iii) that the accused/petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge, Sribhumi; and

(iv) that the accused/petitioner shall not leave the jurisdiction of the learned Special Judge, Sribhumi, without prior permission.

26. In terms of above, this bail application stands disposed of.

JUDGE

Comparing Assistant