Gauhati High Court

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

                                                                        Page No.# 1/6

GAHC010040672025




                                                                  2025:GAU-AS:5711

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

                                Case No. : Bail Appln./536/2025

            NACHIMUDDIN SK
            S/O LATE SAMED ALI SK @ SUMED SK.
            R/O VILL-MAKRAPARA,
            P.S. KOKRAJHAR
            DIST. KOKRAJHAR(BTR),ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A CHAUDHURY, MR. N I KHAN,MR. S Z RAHMAN,MR. P
K DAS

Advocate for the Respondent : PP, ASSAM,
                                                                              Page No.# 2/6

                                 BEFORE
                  HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                  ORDER

08.05.2025

Heard Mr. B. K. Mahajan, learned counsel for the petitioner. 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 arrested in connection with STF P. S. Case No. 21/2024, registered under Sections 61(2)/147/148/149 of BNS read with Sections 10/13/16/18/18B/20 of UA(P) Act, 1967 read with Section 12(1) (a) of the Passport Act, 1967 added Section 38/39 of the UA(P) Act, Section 4/5 of the Explosive Act, Section 25/27 of the Arms Act and Section 13/14 of the Foreigners Act.

3. It is submitted by Mr. Mahajan, learned counsel for the petitioner, that the petitioner was arrested in connection with this case on 03.02.2025 and has been in custody since then. The Investigating Officer got sufficient opportunity to interrogate him during this period. He further submitted that the accused/petitioner is in no way connected with the alleged offence and has been arrested merely on the basis of the statement made by a co-accused.

4. He further submitted that there has been only partial compliance with the notice issued under Section 47 of the BNSS, and no compliance with Section 48 of the BNSS, except for a brief note indicating that a WT message was to be sent to his family members. However, those grounds appear to have been considered merely as formalities, rather than fulfilling the statutory requirements, as clearly interpreted by the Hon'ble Apex Court in landmark cases. The IO has mechanically stated the reasons for arresting the petitioner, and those reasons do not disclose any substantive connection to the subject matter of the case or the role of the petitioner in the alleged Page No.# 3/6

incident.

5. In support of his submissions, Mr. Mahajan, learned counsel for the petitioner, relies on the judgment passed by the Hon'ble Apex Court in Vihaan Kumar vs. State of Haryana, reported in 2025 SCC OnLine SC 269. In the second part of the said judgment, it was specifically held that requirement of communicating the ground of arrest to family members/relatives or such other person of the accused/petitioner as may be disclose or nominated by the accused for the purpose of giving such information as provided under Section 50A [corresponding to Section 48 of BNSS] may be noted, this is an addition of the requirement as provided under section 50(1) of Cr.P.C. He further emphasized on paragraph Nos. 2 & 3 of the second part of the said judgment which read as under:

"2. The issue on the requirement of communication of grounds of arrest to the person arrested, as mandated under Article 22(1) of the Constitution of India, which has also been incorporated in the Prevention of Money Laundering Act, 2002 under Section 19 thereof has been succinctly reiterated in this judgment. The constitutional mandate of informing the grounds of arrest to the person arrested in writing has been explained in the case of Pankaj Bansal (supra) so as to be meaningful to serve the intended purpose which has been reiterated in Prabir Purkayastha (supra). The said constitutional mandate has been incorporated in the statute under Section 50 of the Cr.P.C (Section 47 of BNSS). It may also be noted that the aforesaid provision of requirement for communicating the grounds of arrest, to be purposeful, is also required to be communicated to the friends, relatives or such other persons of the accused as may be disclosed or nominated by the arrested person for the purpose of giving such information as provided under Section 50A of the Cr.P.C. As may be noted, this is in the addition of the requirement as provided under Section 50(1) of the Cr.P.C.

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3. The purpose of inserting Section 50A of the Cr.P.C, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person, is 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. Therefore, the purpose of communicating the grounds of arrest to the detenue, and in addition to his relatives is not merely a formality but to enable the detained person to know the reasons for his arrest but also to provide the necessary opportunity to him through his relatives, friends or nominated persons to secure his release at the earliest possible opportunity for actualizing the fundamental right to liberty and life as guaranteed under Article 21 of the Constitution. Hence, the requirement of communicating the grounds of arrest in writing is not only to the arrested person, but also to the friends, relatives or such other person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal."

6. Thus, Mr. Mahajan, learned counsel for the petitioner, submits that the non- furnishing of the grounds of arrest to the family members of the accused/petitioner constitutes a complete violation of Articles 21 and 22(1) of the Constitution of India, rendering the arrest and subsequent remand illegal, as held by the Hon'ble Apex Court. He further submits that on this ground alone, the present petitioner is entitled to be released on bail.

7. On the other hand, Mr. Goswami, learned Additional Public Prosecutor, submits Page No.# 5/6

that the petition for extension of the investigation in respect of the accused/petitioner has already been allowed by the learned Trial Court after perusal of the case diary and considering his involvement in the alleged offence. He further submits that the petitioner is fully involved in the alleged offence, and it was based on this involvement that the Trial Court granted the prayer for extension. He further submitted that there has been full compliance with Section 47 of the BNSS, wherein the grounds for arrest were communicated to the accused/petitioner, and his family members were also served with a WT message intimating the arrest of the accused/petitioner. He further contends that no such ratio, as claimed by the petitioner, has been laid down by the Hon'ble Apex Court in the case of Vihaan Kumar (supra) with regard to the communication of the grounds of arrest. Thus, he raised objection in granting the privilege of bail to the accused/petitioner at this stage.

8. In response, Mr. Mahajan, learned counsel for the petitioner, submits that "information of arrest" and "grounds of arrest" are distinct requirements. In the present case, there was no communication of the grounds of arrest to the petitioner's family members, relatives, or friends. The communication made was merely an intimation of arrest, devoid of any mention of the grounds, thereby vitiating the arrest itself.

9. After hearing the submissions made by the learned counsel for both sides, it is observed that although some grounds of arrest were mentioned in the notice under Section 47 of the BNSS, admittedly, no such grounds were stated in the notice issued under Section 48 of the BNSS, which is a mandatory requirement. The non-furnishing of the grounds of arrest to the family members of the accused/petitioner amounts to a violation of Articles 21 and 22(1) of the Constitution of India.

10. In the case of Vihaan Kumar (supra), the Hon'ble Apex Court clearly held that "the requirement of informing the person arrested on the grounds of arrest is not merely a formality, but a mandatory constitutional requirement under Article 22 of the Page No.# 6/6

Constitution."

11. From the foregoing discussion, it is evident that the grounds of arrest were not communicated to the friends, relatives, or family members of the accused/petitioner. Considering this aspect of the matter, and noting that the IO got ample opportunity to interrogate the petitioner while in custody, I find it to be a fit case to enlarge the accused/petitioner on bail.

12. 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, Kamrup (M), the accused/petitioner, namely, Nachimuddin Sk, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall make himself available for interrogation by the Investigating Officer as and when required;

(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;