Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 8 May, 2025

                                                                        Page No.# 1/7

GAHC010087652025




                                                                  2025:GAU-AS:5698

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

                               Case No. : Bail Appln./1315/2025

            MATIN SHEIKH
            S/O- LATE ALAL UDDIN SEIKH,
            R/O- BORDOLONG,
            P.S-JAKHALABANDHA, DIST- NAGAON, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR S M ABDULLAH P, MD IMRAN,MD R ISLAM,MS F
HUSSAIN

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

                                  BEFORE
                   HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                   ORDER

08.05.2025

Heard Mr. S. M. Abdullah P., learned counsel for the petitioners. Also heard Mr. D. P. Goswami, 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/petitioner, who has been languishing in jail hazot in connection with Uluani P. S. Case No. 13/2025, registered under Sections 61(2)/127(7)/308(5)/115(2) of BNS read with Sections 25(1) (a)/27 of the Arms Act.

3. The Case Diary as called for, has not yet been received.

4. It is submitted by Mr. Abdullah P., learned counsel for the petitioner, that the accused/petitioner is innocent and has not committed any offence as alleged in the FIR. However, he was arrested on 28.03.2025, and since then, he has been in custody. He further submitted that from the FIR itself, it is evident that Section 27 of the Arms Act is not applicable in the present case, and thus, he submits that the I.O. got sufficient opportunity for his custodial interrogation. He also submitted that the case has not yet been charge-sheeted, and further submitted that the other co-accused persons have already been granted bail [Bail Application Case No. 1103/2025 dated 09.04.2025] in connection with this case. On the ground of parity, he accordingly prays for the same relief.

5. He further submitted that the ground of arrest was not mentioned while furnishing the Arrest Memo and issuing notice under Section 47/48 of BNSS, which is a mandatory requirement. The non-compliance of this requirement constitutes 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 Page No.# 3/7

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.

6. In support of his submissions, Mr. Abdullah P., learned counsel for the petitioner, has 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, the learned Additional Public Prosecutor, submitted that the FIR itself reveals that the accused/petitioner is involved in the alleged offence, and the case is also registered under Sections 25(1)(a) and 27 of the Arms Act. Hence, considering the gravity of the offence, the perusal of the case diary is necessary, and he accordingly raised an objection to granting bail to the accused/petitioner.

8. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly the notice issued to the present accused/petitioner under Sections 47/48 of the BNSS. It is accordingly seen that while issuing the said notice, although the name and address of the accused/petitioners, along with the case number and the sections under which he was arrested, is mentioned, there is admittedly no mention of the grounds for arrest in the notices. Thus, it is the admitted position that the grounds of arrest was 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.

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9. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47/48 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 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.

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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 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 Page No.# 6/7

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. Thus, considering the length of detention already undergone by the accused/petitioner and the fact that there has been total non-compliance with Sections 47/48 of the BNSS, which are mandatorily required to be followed, and in view of this and other aspects of the case, I find it a fit case to grant bail to the accused/petitioner.

13. Accordingly, it is provided that on furnishing a bond of Rs. 20,000/- (Rupees twenty thousand) only with 1 (one) surety of like amount to the satisfaction of the learned SDJM (M), Kaliabor, Nagaon, the accused/petitioner, namely, Matin Seikh, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Case;

(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;