Gauhati High Court

Page No.# 1/13 vs The State Of Assam on 9 May, 2025

                                                                  Page No.# 1/13

GAHC010086542025




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

                         Case No. : Bail Appln./1260/2025


         JAKIR HUSSAIN AND ANR
         S/O- LATE INTAJ ALI
          R/O- VILL- NIZ HAPANI
          PS PATHERKANDI
          DIST- SRIBHUMI
          ASSAM

         2: FARHAD HUSSAIN
         S/O ASAB UDDIN
         R/O VILL- CHURAIBARI GAZAR BILL
         P.S. CHURAIBARI
         DIST. NORTH TRIPURA

         TRIPURA.
         VERSUS

         THE STATE OF ASSAM
         REP BY THE PP
         ASSAM


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         Advocate for : MR. M A CHOUDHURY
         Advocate for : PP
         ASSAM appearing for THE STATE OF ASSAM
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                        BEFORE
         HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                    ORDER

Date : 09.05.2025

Heard Mr. M. A. Choudhury, 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 the BNSS, 2023 praying for grant of bail to the accused/petitioners, who have been arrested in connection with Special (NDPS) Case No. 124/2024, arising out of Bazaricherra P.S. Case No. 194/2024, under Sections 21(C)/25/29 of NDPS Act, 1985, pending before the Court of learned Session Judge, Sribhumi.

3. It is submitted by Mr. Choudhury, learned counsel for the petitioners, that the present accused/petitioners got arrested in connection with this case on 07.12.2025 and for last 153 days, they are in custody, though they are innocent and nothing has been recovered from his conscious possession, as alleged in the F.I.R., and thus, the I.O. got sufficient opportunity to interrogate the accused/petitioner keeping them in custody. More so, the petitioners were only the driver and handyman of the truck wherefrom the alleged contraband was recovered. However, the petitioners are innocent and they had no knowledge about the concealment of the alleged contraband in the truck. Further, Mr. Choudhury raised the issue of non-furnishing of grounds of arrest to the present accused/petitioners at the time of their arrest while issuing Arrest Memo as well as Notice under Section 47 of BNSS, which itself is in violation of Article 21 & Page No.# 3/13

22(1) of the Constitution of India. It is the mandate of the Constitution of India that while arresting the accused persons, they as well as their family members should be intimated the grounds of arrest.

4. In this context, Mr. Choudhury, learned counsel for the petitioner, also cited the following decisions of Hon'ble Supreme Court:

(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.

5. Mr. Choudhury 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 and the Notice under Section 47 of BNSS, is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioners are entitled to bail.

6. Mr. Goswami, learned Additional Public Prosecutor, submitted in this regard that the present accused/petitioners were caught red handed along with the contraband and there was a recovery of 670 grams of heroin from the conscious Page No.# 4/13

possession of the accused/petitioners, which was kept in the secret chambers of the truck. He further submitted that it is not a case that the petitioners were arrested subsequently, but they were caught red handed. More so, the case is of commercial quantity, and hence, the rigor of Section 37 NDPS Act will follow. Further he submitted that the case is still under investigation and hence, at this stage, it cannot be held that the accused persons are not guilty of the offence or they will not commit similar kind of offence if they are granted with the privilege of bail as required under Section 37 of the NDPS Act.

7. Mr. Goswami further submitted that since the accused/ petitioner was caught red handed along with the contraband, he was fully aware about the grounds of his arrest in connection with this case. He further submitted that the development of rule, i.e. no person shall be detained without being informed the ground of arrest, has developed from the case of Christie & Anr. Vs. Leachinsky (1947 1 ALL ER 567). He further submitted that the case of Madhu Limaye Vs. State of Maharashtra, reported in AIR 1969 SC 1014, is the first reported case regarding the furnishing of grounds of arrest and violation of Article 22(1) of the Constitution of India, wherein also, the Hon'ble Supreme Court has referred the decision of Viscount Simon in Christie (supra). He accordingly submitted that in case of Madhu Limaye (supra), the following observation was made:

"there is no need to explain the reasons of arrest if the arrested man is caught red-handed and the crime is patent to high Heaven."

8. Mr. Goswami, learned Additional Public Prosecutor, further submitted that Page No.# 5/13

the mentioning of grounds of arrest in case of a person caught red handed was never argued before the Hon'ble Supreme Court nor was pursued or considered by the Hon'ble Supreme Court while passing the judgments in cases of Pankaj Bansal Vs. Union of India, reported in (2024) 7 SCC 576; Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254; and Vihaan Kumar Vs. State of Haryana & Anr., reported in 2025 SCC OnLine SC 269. In those cases, the Hon'ble Supreme Court has passed the judgments without considering the issue of necessity of informing the grounds of arrest to a person caught red handed and thus, applying the "doctrine of sub-silentio" it can be very well said that the judgments passed by the Hon'ble Supreme Court in Pankaj Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar (supra) are not a precedent so far the cases where the accused person got arrested red handed.

9. Accordingly, the learned Additional Public Prosecutor submitted that the bail prayer of the present petitioners cannot be considered at this stage on the ground of non-furnishing of the ground of arrest to the accused/petitioners. From the facts and circumstances of this case itself, it is sufficient to hold that the petitioners were well aware about the grounds when they were caught red handed along with the contraband. Accordingly, Mr. Goswami submitted that the bail prayer of the present petitioners may be rejected.

10. Mr. Choudhury, learned counsel for the petitioners, submitted in this regard that as per the F.I.R., it is seen that there was prior information to the Investigating Officer and hence, it cannot be said that the person caught red handed or the police officer had no time to serve Notice under Section 47 of Page No.# 6/13

BNSS. He further submitted that the Articles 21 & 22 of the Constitution of India are the inherent right of every person and non-mentioning of grounds of arrest in the Notices as well as in the Arrest Memo itself is in violation of Articles 21 & 22(1) of the Constitution of India. Mr. Choudhury further submitted that in the case of Madhu Limaye (supra) though it was discussed about the issue of red handed, but the accused was enlarged on bail by the Hon'ble Supreme Court considering the fact of violation of Article 22(1) of the Constitution of India. Accordingly, Mr. Choudhury, learned counsel for the petitioners, submitted that it is a fit case wherein the bail can be granted to the present accused/petitioners on the ground of non-furnishing of grounds of arrest to them in the Arrest Memo as well as in the Notice under Section 47 of BNSS.

11. Mr. Choudhury also submitted that the issue of "caught red handed" is still pending before the Hon'ble Apex Court in Special Leave to Appeal (Crl.) No(s). 17132/2024, arising out of impugned final judgment and order dated 25.11.2024 in CRWP No. 3533 passed by the High Court of Judicature at Bomay (Mihir Rajesh Shah Vs. The State of Maharashtra & Anr.), which is already reserved by the Hon'ble Supreme Court for pronouncement of judgment, however the Hon'ble Supreme Court had already released the accused persons on interim bail till disposal of the said appeal.

12. I have considered the submissions made by the learned counsels for both sides and also perused the materials available on record as well as the judgments cited by the learned counsels for both sides.

13. From the submissions made by the learned counsels for both sides, it is Page No.# 7/13

seen that basically the issue raised by the petitioners is the non-communication of the grounds of arrest to the present petitioners in the Arrest Memo as well as in the Notice under Section 47 of BNSS. It is the admitted fact that the grounds of arrest were not communicated to the present petitioners as well as to his relatives as required under the provision of Sections 47 & 48 of BNSS. The Hon'ble Apex Court in the cases of Pankaj Bansal (supra), Prabir Purkayastha (supra) & Vihaan Kumar (supra), as referred above, had discussed in detail in regards to non-communication of the grounds of arrest to the accused persons and it is considered in various paragraphs of the judgments that non-compliance of same is in violation of Article 21 & 22(1) of the Constitution of India.

14. Further it is a fact that in the judgments, referred to hereinabove, the Hon'ble Supreme Court had not discussed the issue of caught red handed and no distinction was made in those judgments in regards to the arrest of the accused person. But, in paragraph No. 31 of the judgment of Vihaan Kumar (supra), the Hon'ble Supreme Court has held that all Courts, including the High Court, have a duty to uphold fundamental rights. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. For ready reference, paragraph No. 31 of the said judgment read as under:

"31. The learned Single Judge, unfortunately, has equated information given regarding the appellant's arrest with the grounds of arrest. The observation that the allegation of non- supply of the grounds of arrest made by the appellant is a bald allegation is completely uncalled for. All courts, including the High Court, have a duty to uphold fundamental rights. Once a violation of a fundamental right under Article 22(1) was alleged, it was the duty of the High Court to go into the said contention and decide in one way or the other. When a violation of Article 22(1) is alleged with respect to grounds of arrest, there can be possible two contentions raised: (a) that the arrested Page No.# 8/13

person was not informed of the grounds of arrest, or (b) purported information of grounds of arrest does not contain any ground of arrest. As far as the first contention is concerned, the person who is arrested can discharge his burden by simply alleging that grounds of arrest were not informed to him. If such an allegation is made in the pleadings, the entire burden is on the arresting agency or the State to satisfy the court that effective compliance was made with the requirement of Article 22(1). Therefore, the view taken by the High Court is completely erroneous."

15. In the 2nd part of the judgment of Vihaan Kumar (supra), it is also been observed by the Hon'ble Apex Court that "the purpose of inserting Section 50A of the CrPC, making it obligatory on the person making arrest to inform about the arrest to the friends, relatives or persons nominated by the arrested person it 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."

16. The Hon'ble Supreme Court in the case of Directorate of Enforcement Vs. Subhash Sharma, reported in 2025 SCC OnLine 240, in paragraph No. 8 of the judgment, has observed that " once a Court, while dealing with a bail application, finds that the fundamental rights of the accused under Articles 21 and 22 of the Constitution of India have been violated while arresting the accused or after arresting him, it is the duty of the Court dealing with the bail application to release the accused on bail. The reason is that the arrest in such cases stands vitiated. It is the duty of every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution."

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17. Further, it is a settled proposition of law that the High Courts or the Subordinate Courts should decide the matters on the basis of law as it stands and unless specifically directed by the Hon'ble Supreme Court to await an outcome of a reference or review petition as the case may be. In that context also, a decision of Hon'ble Supreme Court can be relied on which was reported in 2023 SCC OnLine SC 114 (Union Territory of Ladakh Vs. Jammu and Kashmir National Conference), wherein in paragraph No. 35 of the judgment, it has been held as under:

"35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it."

18. So, from the discussion made above, it is seen that as on today, there is no such distinction made for consideration of bail in cases where the accused persons were caught red handed or subsequently arrested. But, the Hon'ble Apex Court in all the cases, as referred above, had expressed the view that non- furnishing of grounds of arrest to the accused person as well as to his family members, relatives or friends is in complete violation of mandate of Article 21 & 22(1) of the Constitution of India.

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19. 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 Nos. 19, 21 & 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.

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."

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20. 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 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."

21. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Arrest Memo as well as in the Notice issued to the present accused/petitioners under Section 47 of BNSS, and 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 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 Constitution of India, the arrest of the petitioners is Page No.# 12/13

vitiated and it may be a sufficient ground to consider their 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.

22. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioners may not be a good ground for considering their bail application at this stage as the case is still under investigation. However, considering the fact that the grounds of arrest were not communicated to the petitioners or mentioned in the Arrest Memo as well as in the Notice issued to the present accused/petitioner under Section 47 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioners.

23. 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, (i) Jakir Hussain & (ii) Farhad Hussain, be enlarged on bail, subject to the following conditions:

(i) that the accused/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 accused/petitioners shall not, directly or indirectly, make any Page No.# 13/13

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;