Bail Appln./1078/2025
2025 Latest Caselaw 264 Gua

Gauhati High Court

Bail Appln./1078/2025 on 6 May, 2025

  GAHC010074142025




                                                  2025:GAU-AS:5637

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



                     BAIL APPLICATION NO.1078 OF 2025

                         Abdul Sadik,
                         S/o- Abdul Matin,
                         R/o- Vill: Muliala (Mulalia),
                         P.S.- Ratabari,
                         District- Sribhumi, Assam,


                                                     .......Petitioner

                                         -Versus-

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

                                                   .......Respondent


                           -BEFORE-

       HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

 For the Petitioner(s)       : Mr. M. A. Choudhury, Advocate.

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

 Date of Hearing             : 06.05.2025.

 Date of Order               : 06.05.2025



                                                         Page 1 of 11
                            ORDER

Heard Mr. M. A. Choudhury, learned Counsel appearing for the petitioner. 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/petitioner i.e. Abdul Sadik, who has been arrested on 12.12.2024 in connection with Special (NDPS) Case No.130/2024 arising out of Badarpur P.S. Case No.302/2024 registered under Section 22(c)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is pending before the learned Special Judge (NDPS), Sribhumi (Karimganj).

3. The brief facts of the case is that an F.I.R. was lodged on 12.12.2024 alleging inter-alia that upon receiving an information as regards the involvement of a four wheeler vehicle coming from Bhairab Nagar towards Badarpur via Anglarbazar, a police team proceeded to the location and when the said vehicle had approached the checkpoint, the same was stopped. It is alleged that the occupants in the vehicle admitted during interrogation that they were transporting drugs which were kept concealed within the fuel chamber of the vehicle. It is further alleged that upon search of the vehicle the police team found 5(five) nos. of bundles which were wrapped with black and

yellow colour adhesive tapes and upon opening the bundles, contraband substances weighing commercial quantity were found. Accordingly, the contraband items were seized and the accused persons including the petitioner were arrested. Hence, the instant bail petition has been filed.

4. Mr. M. A. Choudhury, learned Counsel appearing for the petitioner submits that the arresting authority while arresting the petitioner has not informed the grounds of arrest to him and as such, the fundamental and constitutional rights guaranteed to him under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the petitioner is entitled to be released forthwith.

5. Mr. K. Baishya, learned Additional Public Prosecutor, Assam places the instruction received from the jurisdictional police station intimating that no grounds of arrest has been intimated to the petitioner.

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

7. 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."

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 petitioner under Section 47 of the BNSS., which reads as hereunder: -

"NOTICE OF INFORMATION U/S 47 BNSS

(Information to arrested person on grounds of

arrest and right to bail)

To,

Abdul Sadik, 27 yrs, S/o- Abdul Matin

Vill:- Muliala, P.S:- Ratabari

Dist- Sribhumi.

You are hereby informed of your arrest in connection with the below referred case/circumstances. The case is Non- Bailable to Police.

Case No. & Penal Sections of Law/GD reference and circumstances and PS:

Badarpur PS Case No. 302/2024, U/s 22(C)/25/29 NDPS Act.

Further intimated that you should arrange for sureties on your behalf to release you on bail. (This paragraph is not applicable if it is a Non-Bailable to Police)

Signature of Arrested Person:

Signature of the arresting Officer:-

Name of Arresting Officer:- SI Dibakor Gogoi

Designation:- Sub-Inspector

P.S/O.P:- Malua PICP

Date and time:- 12/12/24"

10. Perusal of the aforesaid notice indicates that no facts whatsoever constituting the grounds of arrest are reflected in the said notice except that he has been arrested in connection with the case under reference.

11. Apt also to refer to the Memo of Arrest of the petitioner, which reads as hereunder: -

"Arrest Memo (U/S 36 BNSS) Name with Alias and Parentage of the Arrestee:- Abdul Sadik, 27 yrs, S/o- Abdul Matin,

2. Mobile No./WhatsApp Mobile No./Email Address:

3. Present Address of the Arrestte: Vill:- Muliala, P.S:- Ratabari, Dist- Sribhumi,

4. Permanent Address of the Arrestee: Vill:- Muliala, P.S.- Ratabari, Dist- Sribhumi,

5. Circumstances (includes arrest done under Sec.39 of BNSS) and General Diary reference of Police Station or out post/Case No. Sections of Law and Police

Stations:- Badarpur PS Case No.302/2024, U/S 22(C)/25/29 NDPS Act

6. Place of arrest:- Badarpur P.S.

7. Date and time of arrest:- 12/12/2024 at 10 PM

8. Injuries present at the time of arrest: NIL

9. Whether the arrested person forcibly resisted the endeavor to arrest him/her:

10. If arrested person forcibly resisted the arrest, what are the means used by the Police Officer to affect the arrest: NIL

11. Whether the accusations against the arrested person or bailable or non-bailable? Non-Bailable

12. If the accusations against arrested the arrested person are bailable , whether the arresting officer intimated the arrested person that he/she is entitled to bail and that he may arrange for sureties on his behalf (Ref:Sec.47(2)BNSS)

13. Signature, name and address of witnesses to arrest:

Name and address of Signature with date and witness time

14. Signature of arrested person:-

15. Name and designation of arresting Officer with date and time:"

12. Perusal of the memo of arrest also indicates that no information as regards the grounds of arrest is mentioned. Similarly, the Inspection Memo which is also reproduced hereunder for ready reference does not indicate any particulars as regards the grounds of arrest being intimated to the petitioner: -

"INSPECTION MEMO

(As per guidelines of hon'ble supreme court in the case of DK Basu Bs State of West Bengal)

Ref:- Badarpur PS Case No.302/2024, U/S 22(C)/25/29 NDPS Act

Name & Address of the person arrested:- Abdul Sadik, 27 yrs, S/o Abdul Matin, Vill:- Muliala, P.S: Ratabari, Dist:- Sribhumi.

1. Date & Time of arrest:- On 12/12/2024 at 10 PM

2. Place of arrest:- Badarpur P.S>

3. Details of injury at the time of arrest:-

4. Signature of arrestee:-

5. Signature of witness:-

6. Signature of arresting officer:-"

13. Mr. K. Baishya, learned Additional Public Prosecutor, Assam has placed a communication received from the jurisdictional Police Station by e-mail dated 06.05.2025 wherein a correspondence dated 05.05.2025 of the jurisdictional Police Station is enclosed. A perusal of the same, it indicates that the grounds of arrest were not informed to the accused/petitioner.

14. Thus, it is apparent 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 petitioner at the time of his 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 available on record to indicate that grounds of arrest have been

communicated to the petitioner. Therefore, it is absolutely clear that the grounds of arrest was not informed to the petitioner at the time of his arrest, hence, the arrest of the petitioner is totally illegal. As such, the arrest of the petitioner 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 petitioner. Therefore, further detention of the petitioner in the custody is totally unjustified.

19. In view of the aforesaid, this Court is of the considered opinion that the petitioner is liable to be released forthwith. Accordingly, the petitioner Abdul Sadik, shall be released on bail in connection with the aforementioned case on furnishing of a bail bond of Rs. 50,000/-(rupees fifty thousand), with two sureties of like amount, provided that one surety has to be a Government Servant, to the satisfaction of the learned Special Judge (NDPS), Sribhumi (Karimganj) under the following conditions, that the petitioner: -

(a) shall not leave the territorial jurisdiction of jurisdictional learned Special Judge, 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 Special Judge;

(c) shall not hamper with the investigation, or tamper with the 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 him 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.

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

21. Copies of the e-mail dated 06.05.2025 and Arrest Memo are kept on record and marked as „X‟ and „Y‟ respectively.

JUDGE

Comparing Assistant