Gauhati High Court

Page No.# 1/15 vs The State Of Assam on 13 May, 2025

                                                                       Page No.# 1/15

GAHC010086632025




                                                                  2025:GAU-AS:5854

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

                               Case No. : Bail Appln./1264/2025

            SAPIDUL ISLAM ALIAS SK
            S/O JIAL HOQUE VILL- BORO KAZIRGAON,
            P.S. SUKCHAR
            DIST. SOUTH SALMARA,
            MANKACHAR, ASSAM
            PIN-782128



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A Z AHMED, MR. A KHALEK

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 13-05-2025

Heard Mr. A.Z. Ahmed, the learned counsel for the petitioner. Also heard Ms. N. Das, the learned Additional Public Prosecutor appearing on behalf of State respondent.

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2. This is an application under Section 483 of the BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Sukchar P.S. Case No. 82/2024, [Corresponding to G.R. No. 500/2024) under Sections 22(c)/29 of NDPS Act, 1985.

3. It is submitted by Ms. Das that Case Diary is not received.

4. In this context, Mr. Ahmed, the learned counsel for the petitioner submitted that the present petitioner was arrested on 08.12.2024 and the case is still under investigation. Charge-sheet is not yet submitted by I/O. He further submitted that there was no recovery from the conscious possession of the present accused/petitioner.

5. Apart from that, Mr. Ahmed, the learned counsel for the petitioner, further submitted that admittedly the grounds of arrest were not communicated to the present accused/petitioner nor to his family members in the Arrest Memo as well as in the Notices under Sections 47 & 48 of BNSS, corresponding to Section 50 & 50A of Cr.P.C., which itself is in violation of Article 21 & 22(1) of the Constitution of India. It is the mandate of the Constitution of India that the accused/petitioner as well as his family members should be intimated the grounds of arrest.

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

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(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.

(iii) Ashish Kakkar Vs. Ut of Chandigarh [Criminal Appeal No. 1518/2025, arising out of SLP (Crl.) No. 1662/2025, decided on 25.03.2025]

7. Mr. Ahmed, learned counsel for the petitioner, further submitted that in the cases of Pankaj Bansal Vs. Union of India, reported in (2024) 7 SCC 576, Prabir Purkayastha (supra), and Vihaan Kumar (supra), the Hon'ble Supreme Court did not make any distinction as to whether the petitioner caught "red handed" or he was subsequently arrested in connection with the cases. The only observation made by the Hon'ble Supreme Court is that the accused is entitled to bail whenever there is any violation of Articles 21 & 22(1) of Constitution of India for non-compliance of the provision of Sections 47 & 48 of BNSS, corresponding to Sections 50 & 50A of Cr.P.C. He further submitted that the issue of "red handed" is still pending before the Hon'ble Supreme 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.). However, in said case, the Hon'ble Apex Court had granted interim bail to the accused persons considering the violation of Articles 21 & 22(1) of the Constitution of India.

8. Mr. Ahmed, learned counsel for the petitioner, further submitted that the observation of the Hon'ble Apex Court always had the retrospective effect unless the judgment itself specifically speaks that the judgment will operate Page No.# 4/15

prospectively. In that context, he also relied on a decision of Hon'ble Supreme Court passed in Special Leave Petition (Criminal) Nos. 8609-8614 of 2024 (Kanishk Sinha & Anr. Vs. The State of West Bengal & Anr., wherein in paragraph No. 3 of the judgment, it has been observed as under:

"...

Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bonafidely done something with the understanding of the law as it existed at the relevant point of time. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many."

9. Mr. Ahmed, learned counsel for the petitioner, further submitted that 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, he relied on a decision of Hon'ble Supreme Court passed in the case of Union Territory of Ladakh Vs. Jammu and Kashmir National Conference, reported in 2023 SCC OnLine SC 114, and emphasized on paragraph No. 35 of the judgment, which reads 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 Page No.# 5/15

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."

10. Mr. Ahmed also relied on another decision of Hon'ble Supreme Court which was reported in 2025 SCC OnLine 240 (Directorate of Enforcement Vs. Subhash Sharma) and emphasized on paragraph No. 8 of the judgment, wherein it has been observed by the Hon"ble Apex Court 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."

11. Mr. Ahmed 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 Notices under Sections 50 & 50A, corresponding to Sections 47 & 48 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 petitioner is entitled to bail.

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12. Ms. Das, the learned Additional Public Prosecutor, submitted in this regard that the present petitioner was caught red handed and the contraband i.e. 1000 nos. of suspected Yaba tablets were recovered from his conscious possession and she submitted that this is not at all a fit case to grant bail to the accused/petitioner and hence, she raised objection.

13. Ms. Das submitted that while dealing with a case of NDPS Act, the object and purpose of the Act has to be considered and if such kind of offender is allowed to go on bail, the very purpose and object of the Act itself will be frustrated. In that context, he also relied on a decision of Hon'ble Supreme Court passed in the case of Narcotics Control Bureau Vs. Kashif, reported in 2024 0 Supreme(SC) 1264, and emphasized on paragraph No. 39 of the judgment, which reads as under:

"39. The upshot of the above discussion may be summarized as under:

(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature.

Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic Drugs and Psychotropic Substances.

(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be Page No.# 7/15

released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act."

14. She also relied on a decision of the Hon'ble Apex Court passed in the case of The State of Meghalaya Vs. Lalrintluanga Sailo & Anr. [Special Leave to Appeal (Crl.) No(s). 16021/2023], wherein the Apex Court has expressed the view that the bail cannot be granted even to a HIV patient only on the sole reason of illness and if the twin conditions under Section 37 NDPS Act are not satisfied. Further it is held that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 NDPS Act is impermissible. He further emphasized on paragraph Nos. 8 & 10 of the judgment, which read as under:

"8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the decisions referred supra revealing the consistent view of this Court that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications. ...

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10. The subject FIR viz., FIR No. 06(02)23 under Section(s) 21(c)/29 of the NDPS Act, would reveal that the quantity of the contraband involved is 1.040 kgs of heroin. The impugned order granting bail to accused-Smt. X, dated 29.09.2023 would reveal, this time also, the bail was granted on the ground that she is suffering from HIV and conspicuously, without adverting to the mandate under Section 37(1)(b)(ii), NDPS Act, even after 6 taking note of the fact that the rigour of Section 37, NDPS Act, calls for consideration in view of the involvement of commercial quantity of the contraband substance. When the accused is involved in offences under Section 21(c)/29 of NDPS Act, more than one occasion and when the quantity of the contraband substance viz., heroin is 1.040 Kgs, much above the commercial quantity, then the non-consideration of the provisions under Section 37, NDPS Act, has to be taken as a very serious lapse. In cases of like nature, granting bail solely on the ground mentioned, relying on the decision in Bhawani Singh v. State of Rajasthan3 would not only go against the spirit of the said decision but also would give a wrong message to the society that being a patient of such a disease is a license to indulge in such serious offences with impunity. In the contextual situation it is to be noted that in Bhawani Singh's case the offence(s) involved was not one under the NDPS Act. We have no hesitation to say that in the above circumstances it can only be held that the twin conditions under Section 37 of the NDPS Act, are not satisfied and on the sole reason that the accused is a HIV patient, cannot be a reason to enlarge her on bail. Since the impugned order was passed without adhering to the said provision and in view of the rigour thereunder the accused-Smt.X is not entitled to be released on bail, the impugned order invites interference."

15. Ms. Das further relied on a decision of Hon'ble Supreme Court passed in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 0 Supreme(SC) 104], wherein it is held that " if a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be question as being violative of Article 21 since the same is authorized by law."

16. Ms. Das further submitted that the Article 21 of the Constitution of India guarantees personal liberty to everyone. However, the same cannot be taken away except in accordance with the procedures established by law. In criminal law, a person accused of an offence which is non-bailable is liable to be Page No.# 9/15

detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of article 21 since the same is authorized by law.

17. Ms. Das further submitted that these are the organized crime of the underworld and such illegal trafficking have led the drug addiction amongst the sizeable section of the public, specially the youths are being affected and the menace has assumed serious and alarming proportion in the recent years. More so, granting bail to the accused/petitioner at this stage may hamper the trial of the case or there may be the influencing of witnesses who are yet to be examined and there is every likelihood of the accused jumping over the condition of bail.

18. More so, he 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 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. She further submitted that the present accused/petitioner is a habitual offender and there are sufficient incriminating materials against him. 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/petitioner on bail at this stage.

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19. 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.

20. From the submissions made by the learned counsels for both sides, it is seen that there is non-communication of grounds of arrest to the present petitioner in the Arrest Memo as well as in the Notices under Sections 47 & 48 of BNSS, corresponding to Sections 50 & 50A of Cr.P.C. 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.

21. 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 Page No.# 11/15

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 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."

22. 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."

23. 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 & Page No.# 12/15

22(1) of the Constitution of India.

24. 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 Page No.# 13/15

invariably be personal to the accused and cannot be equated with the 'reasons of arrest' which are general in nature."

25. 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."

26. 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 Notices issued to the present accused/petitioner and his family members under Sections 47 & 48 of BNSS, corresponding to Sections 50 & 50A 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 Sections 47 & 48 of BNSS, corresponding to Sections 50 & 50A 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 Page No.# 14/15

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 his 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.

27. In view of the entire discussions made above, viz-a-viz, considering the ground of non-furnishing of grounds of arrest in the Arrest Memo and also in the Notices issued to the present accused/petitioner and his family members under Sections 47 & 48 of BNSS, corresponding to Sections 50 & 50A of Cr.P.C., and further considering the observations made by the Hon'ble Apex Court in the case laws referred to hereinabove, this Court is of the considered opinion that the petitioner has made out a case for grant of bail and therefore, I am inclined to grant the privilege of bail to the accused/petitioner.

28. 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 (NDPS), South Salmara, Mankachar, the accused, namely, Sapidul Islam @ Sk, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Page No.# 15/15

Case;

(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;