Gauhati High Court

Page No.# 1/6 vs The State Of Assam on 8 May, 2025

                                                                        Page No.# 1/6

GAHC010053102025




                                                                  2025:GAU-AS:5662

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

                               Case No. : Bail Appln./1111/2025

            NEILHING DOUNGEL
            W/O LALSEI DOUNGEL VILL PANGMOL AND PS JIRIBAM DIST TAMELONG
            MANIPUR



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR H R CHOUDHURY, A S PRODHANI

Advocate for the Respondent : PP, ASSAM, S. TALUKDAR




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                          ORDER

08.05.2025

1. Heard Mr. H.R. Choudhury, the learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, the learned Additional Public Prosecutor appearing for the State of Assam.

2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Neilhing Doungel, who has been detained behind the Page No.# 2/6

bars since 28.03.2024 in connection with Special NDPS Case No. 40/2024, arising out of Badarpur P.S. Case No. 91/2024 under Section 21(c)/25/29 of the NDPS Act, 1985.

3. The gist of accusation in this case is that, on 27.03.2024, one Samar Barman, had lodged an FIR before the Officer-in-Charge of Badarpur Police Station, inter alia, alleging that on receipt of an information through reliable sources that some persons, who would be carrying prohibited narcotics substance from Manipur to Karimganj in an auto rickshaw bearing Registration No. AS-11 CC-9160, a naka checking was organized near Badarpur ghat and the said auto rickshaw was intercepted at about 11:15 AM. From the said auto rickshaw, 3(three) accused persons, including the present petitioner, were apprehended. The other two accused persons were Masuk Ahmed Borbhuiyan@ Mamon and Seilen Kuki. On search of the said vehicle 271 grams of suspected heroin was recovered therefrom.

4. The learned counsel for the petitioner has submitted that though the petitioner was apprehended in connection with the case, however, at the time of his arrest, when he was served with the notice under Section 50 of the Code of Criminal Procedure, 1973, the said notice did not mention any ground of arrest or basic facts which necessitated his arrest in connection with this case.

5. He submits that in the meanwhile, other two accused persons, who were apprehended, along with the present petitioner have already been granted bail by a co-ordinate bench of this Court on the ground of non furnishing of the grounds of arrest at the time of his arrest.

6. The learned counsel for the petitioner has also submitted that the arrest memo as well as inspection memo which were furnished at the time of Page No.# 3/6

arrest also does not contain the grounds of arrest.

7. The learned counsel for the petitioner submits that furnishing the ground of arrest to the person arrested at the time of his arrest is a constitutional as well as statutory mandate and failure to comply with the requirement of informing the ground of arrest as soon as possible after the arrest would make the arrest itself illegal. He also submits that once the arrest is vitiated, the arrested person cannot be detained in custody. In support of his submission, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of "Vihaan Kumar -Vs- State of Haryana and Anr.", reported in "2025 SCC OnLine SC 269".

8. On the other hand, the learned Additional Public Prosecutor has fairly submitted that on perusal of the notice under Section 50 of the Code of Criminal Procedure, 1973, which is annexed as Annexure-A to the additional affidavit filed by the petitioner, it appears that the grounds of arrest were not stated in the said petition.

9. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available in this case.

10. On perusal of the notice under Section 50 of the Code of Criminal Procedure, 1973 which was served on the present petitioner, as well as the arrest memo which was made at the time of the arrest, it appears that apart from the police station case number as well as the penal provisions involved in this case, no other information was furnished to the petitioner at the time of his arrest.

11. The communicating of the grounds of arrest would require the communication of all such details in the hands of Investigating Officer which Page No.# 4/6

necessitated the arrest of the accused in a case. The ground of arrest is distinct from the communication regarding arrest made to the petitioner. In the case relied upon by the petitioner in the case of " Vihaan Kumar v. State of Haryana and Anr." (supra), the Apex Court has observed that simply informing an individual of his arrest does not fulfill the constitutional and statutory requirement provided a grounds of arrest to the arrestee.

12. In the instant case, no such basic facts which necessitated the arrest of the present petitioner were communicated to him in the notice served upon him under Section 50 or in any of the other communications. Hence, there is clear violation of constitutional provisions of Article 22 of the Constitutional of India as well as Section 50 of the Code of Criminal Procedure, 1973 and Section 52 of the NDPS Act, 1985 not furnishing the grounds of arrest to the petitioner at the time of his arrest.

13. In paragraph No. 20 of the judgment of the Apex Court, in the case of "Vihan Kumar Vs. State of Haryana and Another" (supra), it is observed as follows:

"20. 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) has been made. The reason is that due to noncompliance, the arrest is rendered illegal; therefore, the arrestee cannot be remanded after the arrest is rendered illegal. It is the obligation of all the Courts to uphold the fundamental rights."

14. In view of the above discussion, the petitioner, namely, Neilhing Doungel, is entitled to be released on bail and accordingly, he is allowed to go on bail of Rs.50,000/- (Rupees Fifty Thousand only) with two sureties of like Page No.# 5/6

amount (one of whom should be a resident of the State of Assam) subject to the satisfaction of the learned Additional Sessions Judge, Sribhumi, with the following conditions:

i. That the petitioner shall cooperate in the trial of Special NDPS Case No. 40/2024, which is pending in the Court of the learned Additional Sessions Judge, Sribhumi;

ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court;

iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner;

iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court;

v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court;

vi. That the petitioner shall not commit any offence while on bail;

vii. That the petitioner shall appear before the Officer-in-Charge of Badarpur Police Station once in every fortnight till the pendency of the Special NDPS Case No. 40/2024; and

viii. That any violation of the above conditions shall be a good ground for the Page No.# 6/6

Trial Court to get the petitioner arrested and commit him to custody.