Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 9 May, 2025

                                                                         Page No.# 1/9

GAHC010081712025




                                                                  2025:GAU-AS:5762

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

                             Case No. : Bail Appln./1275/2025

           BARWEL LYNGDOH AND ANR
           S/O HAMPYRWA LAPASAM
           R/O VILL-SOHKYMPHOR
           P.S. LADRYMBAI
           DIST.KHIEHRIAT EAST JANTIA HILLS (MEGHALAYA), PIN-793160

           2: SHIBARLANG TALANG
            S/O PARDAN NEPALI
           R/O VILL-SOHKYMPHOR
           P.S. LADRYMBAI
           DIST.KHIEHRIAT EAST JANTIA HILLS (MEGHALAYA)
            PIN-79316

           VERSUS

           THE STATE OF ASSAM
           REP BY THE PP, ASSAM



Advocate for the Petitioner : MR. S C BISWAS, MS. J GHOSH,MR. A K DAS,MRS. R
RONGMEI,MS A DAS,MS A BORAH,MS. K L R YANTHAN

Advocate for the Respondent : PP, ASSAM,
                                                                      Page No.# 2/9

                                  BEFORE
                   HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                   ORDER

09.05.2025 Heard Mr. S. C. Biswas, learned counsel of the petitioners. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor representing the State respondent.

2. This application under Section 483 of BNSS, praying for grant of bail to the accused/petitioners, who have been languishing in jail hazot since 13.02.2024 in connection with NDPS Case No. 26/2024 arising out of Bazarichera P. S. Case No.32/2024, registered under Sections 22(C)/25/29 of NDPS Act [corresponding to G.R. Case No.313/2024], which is pending before the Court of learned Special Judge, Sribhumi.

3. The scanned copy of the TCR is still awaited. However, Mr. Biswas, learned counsel for the petitioners, has produced the certified copies of the relevant documents along with the order sheets.

4. It is submitted by Mr. Biswas, learned counsel for the petitioners, that the present accused/petitioners have been in custody since 13.02.2024 in connection with this case. The charge sheet was filed on 28.03.2024, and charges have already been framed. However, till date, the prosecution has not examined any witnesses. He further submits that the accused/petitioners are innocent and were unaware of the contraband allegedly found in the vehicle that was intercepted by the police. The petitioners were merely the driver and handyman of the said vehicle and had no knowledge of the contraband.

5. He further submits that there has been complete non-compliance with the provisions of Section 50 and 50(1) of the Cr.P.C. [corresponding to Sections 47 Page No.# 3/9

and 48 of BNSS]. Moreover, the grounds of arrest were neither recorded in the Arrest Memo nor in the Inspection Memo, as is mandatorily required. Such non- compliance, it is submitted, amounts to a violation of the fundamental rights guaranteed under 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 committed by the accused, should be informed to them at the time of their 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 this context also, Mr. Biswas, learned counsel for the petitioner, 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. Biswas also submitted that though in the case of commercial quantity, the rigor of Section 37 NDPS Act follows, but in cases where there is violation of the constitutional provision as mandated under Articles 21 & 22 of the Constitution of India, the statutory restriction will not affect the power of the Court to grant bail in such circumstances. More so, non-mentioning of grounds of arrest while issuing the Arrest Memo or Notices under Section 47/48 BNSS is itself in violation of Article 22(1) of the Constitution of India and hence, without Page No.# 4/9

even going into the detail of the merit of the case, the present petitioners are entitled to bail.

8. On the other hand, Mr. Goswami, learned Additional Public Prosecutor, submits that the recovery was made from the vehicle intercepted by the police, and therefore, the contraband is deemed to have been recovered from the conscious possession of the accused/petitioners. He also submitted that there may not be any written communication for grounds of arrest, but from the materials available in the case record, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, he raised objection in granting bail to the accused/ petitioner.

9. He further submitted that the case is of commercial in nature and hence, rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the Case Record, it cannot be said that the present petitioners are innocent, they have not committed such offence nor there is any probability of committing similar kind of offence if they are released on bail. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioners on bail at this stage.

10. After hearing the submissions made by the learned counsel for both sides, it is observed that the grounds of arrest were not mentioned in the Arrest Memo, and there has been total non-compliance with the provisions of Sections 47 and 48 of the BNSS, which are mandatory in nature. The non-furnishing of the grounds of arrest to the accused/petitioners and to the family members of Page No.# 5/9

the accused/petitioners amounts to a violation of Articles 21 and 22(1) of the Constitution of India.

11. It is the contention of the petitioners 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/petitioners invalid. The accused/petitioners have 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/ petitioners would vitiate the arrest even if the case has been charge- sheeted.

12. 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, 21 and 48 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.

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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.

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."

13. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held has under:

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"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 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."

14. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 47/48 of BNSS, it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of India and in such cases, in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Page No.# 8/9

Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider the bail application in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act.

15. More so, the Hon'ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon'ble Supreme Court in paragraph No. 16 of the said judgment has held as under:

"16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article

22."

16. From the foregoing discussion, it is evident that the grounds of arrest were not communicated to the accused/petitioners, nor were they informed to any of their friends, relatives, or family members, which is a serious procedural lapse. Considering this aspect of the matter, and noting that the IO got ample Page No.# 9/9

opportunity to interrogate the petitioners while keeping them in custody, I find it to be a fit case to enlarge the accused/petitioners on bail.

17. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only each 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, Sribhumi, the accused/petitioners, namely, 1. Barwel Lyngdoh and 2. Shibarlang Talang, be enlarged on bail, subject to the following conditions:

(i) that the petitioners shall appear before the Court of learned Special Judge, Sribhumi, on each and every date to be fixed by the Court;

(ii) that the petitioners 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;