Gauhati High Court

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

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GAHC010085832025




                                                                  2025:GAU-AS:5840

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

                               Case No. : Bail Appln./1273/2025

            SUNITA CHOUHAN
            W/O SANJAY MAHATO R/O VILLAGE BOLLOGORA, PS DHULA, DISTRICT
            DARRANG, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M BISWAS, A GHOSAL,S K DAS

Advocate for the Respondent : PP, ASSAM,
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                                 BEFORE
                  HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                  ORDER

13.05.2025

Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Mr. P. S. Lahkar, 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 on 25.02.2025 in connection with Lumding P. S. Case No. 06/2025, registered under Sections 20

(b) (ii) (C) & 29 of the NDPS Act.

3. Mr. Biswas, learned counsel for the petitioner, has submitted that the present accused/petitioner is innocent and she is no way involved in the alleged offence. She was arrested in connection with this case solely on the basis of suspicion, and as per the FIR, the recovery was allegedly made from her conscious possession. She was arrested on 25.02.2025 and has been in custody since then. He further submits that the accused/petitioner is suffering from a thyroid condition and has a seven-month-old infant who is also facing health issues. It is submitted that the case has not yet been charge-sheeted and is still at the stage of investigation. Therefore, considering the medical condition of the accused/petitioner and her infant, it is prayed that she may be enlarged on bail. Furthermore, she is ready and willing to cooperate with the IO in the further investigation of the case, if granted the privilege of bail.

4. Mr. Biswas further raised the issue of non-compliance with Section 47 of the BNSS, wherein the grounds of arrest were not disclosed. Furthermore, he submitted that the arrest was not communicated to the family members or Page No.# 3/10

relatives of the accused, as mandated under Section 48 of the BNSS. He further contended that, although certain grounds of arrest are mentioned in the Arrest Memo, which cannot be considered as valid grounds or reasons for arrest. The entries in the Arrest Memo are merely formal in nature and are generally applicable to any accused or petitioner arrested for any offence. In contrast, the grounds of arrest are required to be personal and specific to the individual being arrested. In addition to his submission, he relied on the decision rendered by the Hon'ble Apex Court, in case of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254, and relied on paragraph 37 of the said judgment which read as under:

"37. The interpretation given by the learned Single Judge that the grounds of arrest were conveyed to the accused in writing vide the arrest memo is unacceptable on the face of the record because the arrest memo does not indicate the grounds of arrest being incorporated in the said document. Column No. 9 of the arrest memo(Annexure P-7) which is being reproduced hereinbelow simply sets out the 'reasons for arrest' which are formal in nature and can be generally attributed to any person arrested on accusation of an offence whereas the 'grounds of arrest' would be personal in nature and specific to the person arrested.

"9. Reason for arrest a. Prevent accused person from committing any further offence.

b. For proper investigation of the offence.

c. To prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner.

d. To prevent such person from making any inducement threat or promise to any person acquainted the facts of the case so as to Page No.# 4/10

dissuade him from disclosing such facts to the Court or to the Police officer.

e. As unless such person is arrested, his presence in the Court whenever required cannot be ensured."

5. Thus, citing the above judgments, he contends that such non-compliance constitutes a violation of Articles 21 and 22(1) of the Constitution of India, as the disclosure of arrest grounds is a mandatory legal requirement. 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 her at the time of her 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, Mr. Biswas, learned Counsel for the petitioner, also cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

(ii) Prabir Purkayastha (supra).

7. He further 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 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.

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8. Mr. Lahkar, learned Additional Public Prosecutor, submitted that the case has not yet been charge sheeted, however, from the FIR, it is seen that 23.1 kg of cannabis was recovered from possession of the accused/petitioner. He further 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. Accordingly, Mr. Lahkar, 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 record, it cannot be said that the present petitioner is innocent, she has not committed such offence nor there is any probability of committing similar kind of offence if she is 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/petitioner on bail at this stage.

10. After hearing the submissions made by the learned counsels for both sides, I have perused the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 47/48 of BNSS. It is accordingly seen that while issuing the Notice, though the name and the address of the accused/petitioners along with the case number as well as the Sections under which she is arrested is being mentioned, but admittedly there is no mention about the grounds of arrest in the Notice/Arrest Page No.# 6/10

Memo/Inspection Memo. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to her family members at the time of her 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 she was taken into custody of police.

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/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.

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 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 Page No.# 7/10

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 Page No.# 8/10

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:

"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 Page No.# 9/10

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 Notice issued to the present accused/petitioner under Section 47/48 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 47/48 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 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.

15. In view of the entire discussions made above, it is the opinion of this Court that the grounds of arrest were not communicated to the petitioner or mentioned in the Notice issued to the present accused/petitioner under Section 47/48 of BNSS. Accordingly, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

16. 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.# 10/10

one surety has to be a government servant, to the satisfaction of the learned Special Judge (NDPS), Sankardev Nagar, Hojai, namely, Sunita Chouhan, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall make herself 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 her from disclosing such facts to the Court or to any police officer;