Gauhati High Court

Page No.# 1/6 vs The State Of Assam on 13 May, 2025

                                                                        Page No.# 1/6

GAHC010096862025




                                                                  2025:GAU-AS:5841

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

                               Case No. : Bail Appln./1480/2025

            AHALUDDIN RAHMAN
            S/O MD. ABDUL LATIF
            VILL-NIZ BAGHMARI
            P.S. JINGIA AND P.O.BURIGANG
            DIST. BISWANATH, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A M AHMED, P. GHOSH,B DAS,MRS S RAHANA

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 13-05-2025

Heard Mr. I.U. Chowdhury, the learned counsel for the petitioner. Also heard Mr. M.P. Goswami, the learned Additional Public Prosecutor for the State respondent.

Page No.# 2/6

2. This application is filed under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Bihpuria P.S. Case No. 66/2025 under Sections 21(b)/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 [G.R. Case No. 332/2025].

3. It is submitted by Mr. Chowdhury, the learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing had been recovered from his conscious possession. However, he got arrested in connection with this case on 05.04.2025 and since 38 days he is in custody. The case is still under investigation and charge-sheet is not yet filed against the present petitioner. The rigor of Section 37 is also not attract as the present case is not of commercial quantity. Further Mr. Chowdhury submitted that the petitioner will appear before the I/O and will co-operate in the further investigation of the case.

4. Further Mr. Chowdhury raised the issue that though under Sections 47-48 BNSS notices were issued to the present petitioner but there was no grounds of arrest, which is a mandatorily required and non-compliance of the same is in violation of Articles 21 & 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 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.

5. In support of his submissions, Mr. Chowdhury, the learned counsel for the petitioner, has cited the following decisions:

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

Page No.# 3/6

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

6. Mr. Goswami, the learned Additional Public Prosecutor submitted in this regard that the case is still under stage of investigation and without the Case Diary it is not in a position to say with regard to his involvement in the alleged offence. However, from the Forwarding Report it is seen that there are sufficient incriminating materials so far collected from the I/O and recovery was also made from his conscious possession. Mr. Goswami accordingly raised objection and submitted that it is not at all a fit case to grant bail to the accused/petitioner only considering the grounds of not furnishing the reasons of grounds of arrest under Section 47-48 BNSS. He also submitted that there may not be any written communication for grounds of arrest in the Notice under Section 47-48 BNSS, 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.

7. 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 Notices issued to the present accused/petitioners under Section 47-48 of BNSS. It is accordingly seen that while issuing the same, though the name and the address of the accused/petitioners along with the case number as well as the Sections under which they were arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notices. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/ Page No.# 4/6

petitioners or to their family members at the time of their 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. 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 persons 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.

7.a . The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioners, 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 Page No.# 5/6

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."

8. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held as 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."

9. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notices issued to the present accused/petitioners 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 BNSS corresponding to Section 50 of Cr. P.C., it is seen that there is clear Page No.# 6/6

violation of mandate of Article 22(1) of the Constitution of India.

10. 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 CJM, Lakhimpur, North Lakhimpur the accused/petitioner, namely, Ahaluddin Rahman, 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. 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;