Page No.# 1/ vs The Union Of India
2025 Latest Caselaw 230 Gua

Gauhati High Court

Page No.# 1/ vs The Union Of India on 6 May, 2025

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GAHC010076622025




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

                               Case No. : Bail Appln./1129/2025

            SRI VINAY KUMAR @ VINAY YADAV AND ANR.
            RO MOHSINPUR, KHUSRUPUR, NEAR BAKHRIYARPUR, PATNA, BIHAR

            2: SHRI RAJANIKANT KUMAR
             RO VILLAGE DIDARGANJ
             PO KOTHIYA
             PS DIDARGANJ
             SONAVA PATHA BIHA

            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE STANDING COUNSEL, NCB



Advocate for the Petitioner   : MR. Y S MANNAN, MR. T HUSSAIN

Advocate for the Respondent : SC, NCB,




                                    BEFORE
                    HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                          ORDER

06.05.2025

Heard Mr. Y.S. Mannan, learned counsel for the petitioners. Also heard Mr. S.C. Keyal, learned Standing Counsel, NCB (Special Public Prosecutor).

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2. This is an application under Section 483 of BNSS, 2023 for granting regular bail to the petitioners, i.e. Vinay Kumar @ Vinay Yadav and Rajnikant Kumar, who have been arrested on 01.04.2024 in connection with NDPS Case No. 323/2024 corresponding to NCB Crime No. 04/2024 registered under Section 8(C), read with Section 22(C)/29 of NDPS Act, 1985 (as amended) pending before the Court of learned Additional District and Sessions Judge No. 5, Kamrup (Metro), Guwahati.

3. The brief facts of the case is that the informant lodged an FIR before the Officer-in-charge, NCB Police Station stating that a reliable information was received by Sh. Aashiph Mustafa, Sub Inspector, NCB Guwahati on 16.03.2024 at about 16:00 hours that a huge quantity of SAMPEX+ Capsules containing Tramadol and Nitrosun 10 tablet containing Nitrazepam are being carried by a person, namely, Nitiya Nand Singh from Patliputra Junction (the petitioners herein) to Dimapur Railway Station through DBRT Rajdhani Express (Train No. 12424) via Guwahati Railway Station. Thereafter, the team along with two independent witnesses boarded the B9 coach of the said train. At berth No. 66 of the said coach, one person was seated. On asking, he said that his name was Nitiya Nand Singh, S/o- Devnand Singh, R/o- Gadaichak, Parbalpur, Nalanda, Bihar-803114. Nitiya Nand Singh told that he had purchased the tatkal reservation ticket of the said train. Thereafter, the NCB team and independent witnesses introduced themselves to Nitiya Nand Singh and disclosed the information available with the team with an intention to search his luggage/ bags carried by him. On request, Nitiya Nand Singh voluntarily showed his 02 baggages which were laying beneath the berth No. 66 where Nitiya Nand Singh was seated. On opening the grey colour luggage bag held by him, some transparent polyethylene packets were found containing blue colour capsules.

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On uncovering, it was found that loose blue colour capsules with SAMPEX+ marks believed to be Tramadol were there. In the same manner, on opening of blue colour trolley bag held by him, some transparent polythene packets were found containing blue colour capsules. On uncovering the same, loose blue colour capsules with SAMPEX+ marks believed to be Tramadol were found inside there and also some bunch of strips of Nitrosun 10 tablets were also found in the blue colour trolley bag. Thereafter, with the consent of Nitiya Nand Singh, he alongwith all his belongings (two luggage bags) including the suspected drugs that was held by him were taken down from train to Platform No. 01, near RPF Post for thoroughly search and seizure procedure in presence of NCB team and independent witnesses (officials of RPF). While searching, on opening grey colour luggage bag held by him, 13 Nos. of transparent polythene packets containing loose blue colour capsules marked as SAMPEX +, which is believed to be Tramadol were found. On opening blue colour trolley bag (Safari brand) held by him, 13 Nos. of tansparent polythene packets containing loose blue colour capsules marked as SAMPEX which is believed to be Tramadol were found and also 22 bunch of Nitrosun 10 tablet containing Nitrazepam in three batches (each bunch contains five stripsband with rubber and and in each strip contains 20 tablets (Total- 22x20x5=2200 tablets). (1) Batch No. FE6839A; MFG Date:

10/23 EXP Date: 09/26 contains 20 bunch i.e. total 20x20x5= 000 tablets. (2) Batch No. DFE4090A; MFG Date: 07/23 EXP Date: 06/26 contains 01 each i.e. total 01x20x5= 100 tablets. (3) Batch No. DFE5396A; MFG Date: 08/23 EXP Date: 07/26 contains 01 bunch i.e. total 01x20x5= 100 tablets were found there. Accordingly, the search cum seizure list and compliance report have been prepared by the Investigating Officer of NCB. Thereafter, during interrogation of the main accused, the involvement of the petitioners came into light.

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Accordingly, a search was conducted in the residence and shops of the petitioners and after such search, the petitioners were arrested and produced before the Court of learned jurisdictional Magistrate and thereafter remanded the petitioners by Order dated 02.04.2024. Accordingly, the instant bail application has been filed.

4. Mr. Y.S. Mannan, learned counsel for the petitioners 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.

5. Per contra, Mr. S.C. Keyal, learned Standing Counsel, NCB (Special Public Prosecutor) fairly submits from the materials made available to him that the grounds of arrest was neither informed nor communicated in writing to the petitioners at any time during arrest.

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

7. The only ground urged in this bail application is as regard non-compliance of the Constitutional and Fundamental Right 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 Page No.# 5/10

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."

8. 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.

9. In the present case, apt to refer to the notices issued to the petitioners under Section 50 of the Cr.P.C., which reads as hereunder: -

"NOTICE U/S-50 Cr.P.C

Shri : Vinay Kumar S/o : Ganauri Singh Village : Mohsinpur, Khusrupur Post Office :

Police Station : Khusrupur District : Patna State : Bihar Case No. : 04/2024 Present Address-Mohsinpur, Khusrupur Patna, Bihar U/S : 8(c) to be read with 22(c) & 29 NDPS Act, 1985

You are hereby informed that you are arrested in connection with the above reference case. So, you are forwarded to the Court. You may submit petition before the Hon'ble Court for your bail.

Signature of arrestee Illegible 1.4.24 Page No.# 6/10

Illegible 01.04.2024 Signature of I/O Intelligence Officer Narcotics Control Bureau Guwahati Zonal Unit, Guwahati

"NOTICE U/S-50 Cr.P.C

Shri : Rajnikant Kumar S/o : Shyam Sunder Singh Village : Didarganj Sonava, Patna Post Office :

Police Station :

District       : Patna
State          : Bihar
Case No.        : 04/2024
Present Address- Didarganj Sonava, Patna
                  Bihar
U/S              : 8(c) to be read with 22(c) & 29 NDPS Act, 1985

You are hereby informed that you are arrested in connection with the above reference case. So, you are forwarded to the Court. You may submit petition before the Hon'ble Court for your bail.

Signature of arrestee Illegible 1/4/24

Illegible 01.04.2024 Signature of I/O Intelligence Officer Narcotics Control Bureau Guwahati Zonal Unit, Guwahati"

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10. 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.

11. It appears that there are no materials available to indicate that the grounds of arrest have been informed to the petitioners at the time of their arrest.

12. 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.

13. 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 Page No.# 8/10

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."

14. 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 Page No.# 9/10

Artice 22(1) of the Constitution of India.

15. In the present case, there is nothing in the case 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.

16. In view of the aforesaid, this Court is of the considered opinion that the petitioners are liable to be released forthwith. Accordingly, the 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, provided that one surety has to be a Government Servant, to the satisfaction of the learned Additional District and Sessions Judge No. 5, Kamrup (Metro), Guwahati under the conditions: -

(a) shall not leave the territorial jurisdiction of jurisdictional Additional District and Sessions Judge No. 5, under the NDPS Act, without prior written permission from him;

(b) shall deposit his Passport/visa, etc if any, in the Court of the learned jurisdictional Additional District and Sessions Judge No. 5;

(c) shall not hamper with the investigation, or tamper with the Page No.# 10/10

evidence of the case;

(d) 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; and

(e) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and as and when called by the Investigating Police Officer for the purpose of investigation of the case.

17. In terms of the above, the bail application stands disposed of.

JUDGE

Comparing Assistant