Page No.# 1/ vs The State Of Assam
2025 Latest Caselaw 45 Gua

Gauhati High Court

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

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GAHC010074912025




                                                                  2025:GAU-AS:5332

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

                               Case No. : Bail Appln./1096/2025

            HABIB AHMED
            S/O- NAYMUL HOQUE R/O VILL KANAKPUR PS NILAMBAZAR DIST
            SRIBHUMI ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP ASSAM



Advocate for the Petitioner   : MR. M A CHOUDHURY, MR. A AHMED,U U KHAN,MR A
AHMED

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

01.05.2025

Heard Mr. M. A. Choudhury, learned counsel for the petitioner. Also heard Mr. D. B. Goswami, 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 in connection with Special (NDPS) Case No. 50/2024, arising out of Nilambazar P.S. Case No. 113/2024, under Sections 22(c)/25/29 of the NDPS Act, 1985, pending before the Court of learned Special Judge, Sribhumi.

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

4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that a prayer was made by the I.O. for shown arrest of the present accused/petitioner before the learned Special Judge on 12.06.2024 and considering the same, the prayer for shown arrest was allowed for the petitioner with 2 (two) days police remand. After completion of the police remand, the accused/petitioner was produced before the learned Special Judge on 14.06.2024 along with some documents and the I.O. accordingly prayed for his judicial custody. Mr. Choudhury further submitted that the documents which were produced before the learned Special Judge are basically Forwarding Letter, Inspection Memo, Medical Report, Interrogation Chart, but admittedly there was no Notice under Page No.# 3/10

Sections 47 & 48 of BNSS issued to the present petitioner. He further submitted that even in the case of shown arrest, it is the duty of the Investigating Officer to provide grounds of arrest to the accused as well as to his family members in the Notices under Sections 47 & 48 of BNSS. He accordingly submitted on the said ground for non-mentioning of the grounds of arrest/non furnishing of the Notices under Sections 47 & 48 of BNSS, it is in violation of Articles 21 & 22(1) of the Constitution of India which entitles the present petitioner to go on bail.

5. In this context also, Mr. Choudhury, learned counsel for the petitioner, cited 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.

6. 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-furnishing of Notices under Sections 47 & 48 of BNSS, mentioning the grounds of arrest while arresting the accused person, 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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7. Mr. Goswami, learned Additional Public Prosecutor, submitted in this regard that the accused/petitioner is a habitual offender and he was also earlier arrested in similar kinds of cases wherein he was on custody and considering the statement made by the co-accused persons, the I.O. had made prayer for his shown arrest, which was accordingly allowed by the learned Special Judge. Mr. Goswami further submitted that there are sufficient incriminating materials so far collected by the I.O. during the investigation of this case. The case has already been charge-sheet finding prima facie materials against the accused persons. However, the case is still at the stage of appearance as one of the co- accused is still absconding the trial could not be commenced till date. He further submitted that though there is no written communication of the grounds of arrest, but it is evident that the grounds of arrest is already known to the present petitioner as he was already in police custody and hence, considering the materials available in the case record, he raised objection in granting bail to the accused/petitioner.

8. Further Mr. Goswami 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, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to Page No.# 5/10

enlarge the accused/petitioner on bail at this stage.

9. 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. It is accordingly seen that while arresting the accused/petitioner in connection with the present case, no Notices under Sections 47 & 48 of BNSS was furnished to the accused/petitioner as well as to his family members mentioning about the grounds of arrest nor any Arrest Memo was issued to the petitioner. 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.

10. It is the contention of the petitioner that non-communication of the grounds of arrest, even in cases of shown arrest, is in violation of Sections 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.

11. 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, Page No.# 6/10

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 Page No.# 7/10

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."

12. 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.# 8/10

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."

13. In the instant case also, as discussed above, it is seen that no Notices under Sections 47 & 48 of BNSS, mentioning about the particulars of the offence as well as the grounds of arrest, were furnished to the present accused/petitioner and to his family members. So, from the proviso of Sections 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 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.

14. 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 Page No.# 9/10

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

22."

15. 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- sheet has already been filed and the case is at the stage of appearance. However, considering the fact that the grounds of arrest were not communicated to the petitioner as well as to his family members by furnishing Notices under Sections 47 & 48 of BNSS, 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 one surety has to be a government servant, to the satisfaction of the learned Special Judge, Sribhumi, the accused/petitioner, namely, Habib Ahmed, be enlarged on bail, subject to the following conditions:

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

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(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;

(iii) that the petitioner shall submit his Aadhar Card and PAN Card before the learned Special Judge, Sribhumi; and

(iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Sribhumi, without prior permission.

17. In terms of above, this bail application stands disposed of.

JUDGE

Comparing Assistant