Gauhati High Court

Page No.# 1/12 vs The Union Of India on 9 May, 2025

                                                                         Page No.# 1/12

GAHC010080942025




                                                                   2025:GAU-AS:5770

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

                               Case No. : Bail Appln./1217/2025

            KASHMIR SINGH A DEAOO
            S/O- LATE AJIT SINGH DEAOO,
            R/O- M/502, MARUTI HEIGHTS, OPP SATYAM EXOTICA, DIMAND RD,
            CHANNI, PO AND PS- CHHANI, DIST- VADODARA (GUJARAT)- 391740



            VERSUS

            THE UNION OF INDIA
            REP BY SC, NCB



Advocate for the Petitioner   : MS. S K NARGIS, A SAHA,MR F H LASKAR (2),MS S BEGUM

Advocate for the Respondent : SC, NCB,




                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                          ORDER

Date : 09.05.2025

Heard Ms. S. K. Nargis, learned counsel for the petitioner. Also heard Ms. N. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent/Union of India.

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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 NDPS Case No. 03/2024, arising out of NCB Crime No. 14/2023, under Section 8(c)/20(b)(ii)(C)/29 of NDPS Act, pending before the Court of learned Special Judge, Rangia.

3. Scanned copy of the case record has already been received and I have perused the same.

4. It is submitted by Ms. Nargis, learned counsel for the petitioner, that the present accused/petitioner is innocent and he is no way connected in the alleged offence. Nothing has been seized from the conscious possession of the present accused/petitioner. He is the driver cum owner of the vehicle and was not aware about any loading of the contraband in his vehicle. However, he got arrested in connection with this case on 13.08.2023 and for last 1 (one) year, 8 (eight) months & 19 (nineteen) days, he has been in custody. He further submitted that the charge-sheet of the case was filed on 05.02.2024 and the charge was also framed on 10.04.2024, but till date, out of 8 (eight) numbers of listed witnesses, no witnesses could be examined by the learned Trial Court. She, accordingly, submitted that there is no probability of completion of trial within near future as lots of witnesses are yet to be examined by the prosecution and therefore she submitted that considering the period of long incarceration, the petitioner may be enlarged on bail. He is a permanent resident of his addressed locality and will regularly appear before the Court to contest the case as and when the date is fixed by the Court.

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5. In that context, Ms. Nargis, learned counsel for the petitioner, also relied on the following decisions in support of his case:

      (i)    Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC
             1109]

(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022]

(iii) Md. Muslim alias Hussain Vs. State (NCT of Delhi) [2023 SCC OnLine SC 352]

6. Ms. Nargis further submitted that the grounds of arrest were not communicated to the present petitioner in the Arrest Memo as well as in the Notice under Section 50 Cr.P.C., which is mandatorily required and non- compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. She further submitted that the accused/petitioner was arrested on 13.08.2023 and was remanded for judicial custody on 14.08.2024, but due to non-mentioning of grounds of arrest in the Arrest Memo as well as in the Notice under Section 50 Cr.P.C., the arrest and the remand itself is illegal. She accordingly submitted that all the full particulars of the offence, which is alleged to have been 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.

7. In this context also, Ms. Nargis, learned counsel for the petitioner, cited Page No.# 4/12

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.

8. Ms. Nargis further submitted that one Memorandum of Arrest was also furnished to the present petitioner and some grounds of arrest were also brought in the petition. But that cannot be considered as proper communication of ground of arrest to the present petitioner wherein his family members were also not intimated about the grounds of arrest. She further emphasized on paragraph No. 26 of the case of Vihaan Kumar (supra) and submitted that information about the arrest and the grounds of arrest are completely different.

9. Ms. Nargis 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 as well as in the Notice under Section 50 Cr.P.C.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 petitioner is entitled to bail.

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10. Ms. Deka, learned counsel appearing on behalf of the, learned Standing Counsel for the NCB, submitted that a huge quantity of contraband was recovered from the possession of the accused/petitioner. He further submitted that in the voluntary statement made by the accused/petitioner under Section 67 of the NDPS Act, the accused admitted his involvement in trafficking the said contraband. The accused described in detail how he was associated with the alleged offence, and it is also an admitted position that the entire contraband was recovered from his possession. Accordingly, she submitted that the recovery of the contraband was made from the conscious possession of the accused/petitioner, and therefore, she strongly opposed the grant of bail at this stage.

11. In this context, Ms. Deka relied on the decision of the Hon'ble Apex Court in Union of India through NCB, Lucknow vs. Md. Nawaz Khan [Criminal Appeal No. 1043/2021, arising out of SLP (Crl) No. 1771/2021], wherein it was observed that "with regard to the grant of bail for offences under the NDPS Act, in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 this Court observed that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act. Further, in Union of India v. Prateek Shukla, (2021) 5 SCC 430, one of us (Justice DY Chandrachud), speaking for a two-judge Bench, noted that non-application of mind to the rival submissions and the seriousness of the allegations involving an offence under the NDPS Act by the High Court are grounds for cancellation of bail."

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12. She 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 and Case Diary, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, she 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.

13. She further relied on a decision of Hon'ble Apex Court passed in Criminal Appeal Nos. 1001-1002 of 2022, arising out of Special Leave to Appeal(Crl.) No. 6128-29 of 2021 (Narcotics Control Bureau Vs. Mohit Aggarwal), wherein it has been held that if the Court is not satisfied that the accused is not guilty of the offence alleged against him, the Court should not allow the accused to go on bail. She further gives emphasized on paragraph No. 18 of the said judgment, which reads as under:

"18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe Criminal Appeal Nos. of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 of 2021 that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The lengths of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."

14. She further submitted that the Memorandum of Arrest contains detailed Page No.# 7/12

information regarding the grounds of arrest and the offence committed by the accused/petitioner. Therefore, according to her, there was full compliance with the legal provisions while furnishing the Memorandum of Arrest. She also submitted that Section 50 of the Cr.P.C. does not specifically require that the grounds of arrest be communicated in detailed written form. She argued that the Notice issued to the accused/ petitioner under Section 50 of the Cr.P.C. reflects that proper intimation regarding the arrest was indeed given. Accordingly, she raised objection to the bail application and submitted that this is not a fit case for granting bail merely on the grounds of the prolonged period of incarceration or the alleged non-communication of the grounds of arrest.

15. 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 Section 50 of Cr.P.C. It is accordingly seen that while issuing the said Notice, though the name and the address of the accused/petitioner along with the case number as well as the Sections under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notice. Thus, it is the admitted position that the grounds of arrest were 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.

16. It is the contention of the petitioner that non-communication of the Page No.# 8/12

grounds of arrest is in violation of Section 50(1) of Cr.P.C., corresponding to Section 47 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.

17. It is evident from the Memorandum of Arrest issued to the accused/petitioner that it mentions the recovery of the contraband and states that there is a prima facie case against the accused/petitioner. However, it is a fact that there is no specific mention or detailed description of the alleged offence committed by the accused/petitioner. It is also an admitted position that Section 8(c) of the NDPS Act encompasses various types of offences, but the Memorandum fails to specify which particular aspect or sub-offence under Section 8(c) is being invoked in the present case to attract the application of Sections 20(b)(ii)(C) and 29 of the Act.

18. 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 Constitution."

19. 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."

20. 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 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.

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 Page No.# 10/12

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."

21. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 of Cr.P.C. 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 50 of Cr.P.C., 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 petitioner is vitiated and it may be a sufficient ground to consider her 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.

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22. 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."

23. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage as the charge has already been framed and the trial is about to commence. However, considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Arrest Memo as well as in the Notice issued to the present accused/petitioner under Section 50 Cr.P.C., this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

24. 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 Page No.# 12/12

one surety has to be a government servant, to the satisfaction of the learned Special Judge, Rangia, the accused/petitioner, namely, Kashmir Singh A Deaoo, be enlarged on bail, subject to the following conditions:

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

(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;