Page No.# 1/14 vs The State Of Assam
2025 Latest Caselaw 47 Gua

Gauhati High Court

Page No.# 1/14 vs The State Of Assam on 1 May, 2025

Author: Kalyan Rai Surana

Bench: Kalyan Rai Surana

                                                                       Page No.# 1/14

GAHC010180382024




                                                                  2025:GAU-AS:5426

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

                               Case No. : Bail Appln./2656/2024

            ABDUL SALIK AND ANR
            S/O LATE FOIZUL ISLAM, VILL- SOUTH KEUTI, P.O.-ASHALKANDI, P.S.-
            PATHARKANDI, DIST- KARIMGANJ, ASSAM, PIN-788724

            2: ABDUL FATTA
             S/O LATE FOIZUL ISLAM
            VILL- SOUTH KEUTI
             P.O.-ASHALKANDI
             P.S.-PATHARKANDI
             DIST- KARIMGANJ
            ASSAM
             PIN-78872

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



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

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 01.05.2025 Heard Mr. A. Ahmed, learned counsel for the petitioners. Also Page No.# 2/14

heard Mr. K.K. Das, learned Addl. P.P. for the State.

2) The learned counsel for the petitioner has submitted that all the other co-accused have been released on bail. However, this is the third bail application of the petitioners, namely, Abdul Salik and Abdul Fatta (as stated in the cause title, however, in the charge-sheet, the said name is spelt as Abdul Fattha).

3) It has been submitted that upon rejection of the second bail application of the petitioners vide order dated 23.02.2024, passed by this Court in B.A. No. 155/2024, the petitioner had approached the Supreme Court of India and the said Hon'ble Court, by order dated 25.04.2024, passed in Petition for Special Leave to Appeal (Crl.) No.5584/2024, permitted the petitioners to withdraw the said bail application with liberty to renew their application for bail in case the trial is not concluded within a reasonable time.

4) The learned counsel for the petitioners has submitted that there are two new grounds for making this application. Firstly, that though charge- sheet no. 179 against the petitioners was submitted on 25.07.2022, till date only 5 (five) out of 10 (ten) listed witnesses have been examined. Therefore, there is no possibility of an early conclusion of trial. Moreover, it is submitted that the previous application for bail by the petitioners was rejected by this Court by order dated 23.02.2024, and on that date only 4 (four) out of 10 (ten) witness had been examined by the prosecution and thus, only 1 (one) witness could be examined by the prosecution in a span of 1 (one) year.

5) Secondly, it has been submitted that the grounds of arrest was not disclosed in the arrest memo dated 08.05.2022, which entitled the Page No.# 3/14

petitioners for bail.

6) In support of his submissions that non-furnishing of the grounds of arrest entitles the petitioners to bail, the learned counsel for the petitioner has cited the following cases, viz., (1) Vihaan Kumar v. State of Haryana & Anr., (2025) SCC OnLine SC 269; (2) Prabir Purkayastha v. State (NCT OF DELHI), (2024) 8 SCC 254; (3) Ashish Kakkar v. UT of Chandigarh, Criminal Appeal No. 1518/2025; (4) Ajit Kumar Sarmah v. The State of Assam & Ors., (1976) CRI.L.J. 1303; (5) Joynal Hussen @ Joynal Hussain & Anr. v. The State of Assam, order dated 26.03.2025, passed by this Court in Bail Appln. No. 683/2025; (6) Mahbubul Hoque v. The State of Assam, judgment dated 03.03.2025, passed by this Court in Bail Appln. No. 563/2025; (7) Abdullah Al Mahmud Choudhury @ Abdullah Choudhury @ Bablu v. The State of Assam, order dated 23.04.2025, passed by this Court in Bail Appln. No. 1172/2025; (8) Jasir Uddin Barbhuiya & Anr. v. The State of Assam, order dated 13.03.2025, passed by this Court in Bail Appln. No. 3081/2024; (9) Sri Sumeru Nath v. The State of Assam, order dated 04.04.2025, passed by this Court in Bail Appln. No. 905/2025; (10) Ajir Ali @ Budu v. The State of Assam, order dated 27.02.2025, passed by this Court in Bail Appln. No. 255/2025; (11) Kabel Uddin & Anr. v. The State of Assam, order dated 11.04.2025, passed by this Court in Bail Appln. No. 3241/2024; (12) Abdul Kadir Laskar v. The State of Assam, order dated 25.04.2025, passed by this Court in Bail Appln. No. 527/2025; and (13) Sri Neizosetuo Kire v. The State of Nagaland, judgment and order dated 11.04.2025, passed by the Kohima Permanent Bench of this Court in Bail Appln. No. 2/2025.

7) Per contra, the learned APP has submitted that in the two arrest Page No.# 4/14

memos in respect of the two petitioners, the grounds of arrest have been disclosed to the effect that "sufficient evidence found against him". However, he has submitted that since the rejection of bail by this Court by the last order dated 23.02.2024, only one witness could be examined till 03.02.2024. He, however, opposes the prayer for bail.

8) Seen the materials available on the record. The petitioners were arrested on 08.05.2022 and therefore, they are about 7 days short of three years in police remand and judicial custody. It appears that after the previous bail application was rejected by this Court, the case was taken up by the learned Addl. Sessions Judge, Karimganj (now Sribhumi) on 10 (ten) dates between 26.02.2024 and 30.10.2024. This application was filed on 31.08.2024 and reported on 02.09.2024. The scanned copy of records from the learned Trial Court was called by order dated 20.09.2024, which was received on 03.10.2024. The up-to-date status of trial is not available.

9) Be that as it may, in this regard, we may refer to the elaborate discussion on bail to the petitioners as made in the order dated 23.02.2024, passed in B.A. 155/2024. It may be stated that in the said order, the following cases cited by the learned counsel for the petitioners were discussed, viz., (i) Anjan Nath v. The State of Assam, order dated 17.10.2023, passed by the Supreme Court of India in SLP (Crl.) No. 9860/2023; (ii) Anjan Nath v. State of Assam, judgment dated 19.07.2023, passed by this Court in B.A. No. 2022/2023; (iii) Rabi Prakash v. The State of Odisha, order dated 13.07.2023, passed by the Supreme Court of India in SLP (Crl.) 4169/2023, reported in 2023 LiveLaw (SC) 533; (iv) Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222 . Moreover, by referring to the case of (i) Balbir Kaur v. The State of Punjab, AIR Page No.# 5/14

2009 SC 3036, (ii) Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444 (3-Judge Bench decision) (para-11 to 17) , (iii) Satender Kumar Antil v. Central Bureau of Investigation, AIR 2022 SC 3386 , (iv) Customs, New Delhi v. Ahmadalieva Nodira (2004) 3 SCC 549 (3-Judge Bench) (para-7 & 8) , (v) Noranjan Hemchandra Sashittal & Anr. V. State of Maharashtra, (2013) 4 SCC 642: (2013) 0 Supreme(SC) 252 (para 18 to 21) , (vi) Hira Singh &Anr. V. Union of India &Anr., AIR 2020 SC 3255: (2020) 0 Supreme(SC) 320 (3-Judge Bench) (para 8.5), (vii) P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC 578 (7- Judge Bench) (para 29), (viii) Tarun Kumar v. Assistant Director, Directorate of Enforcement, (2023) 0 Supreme(SC) 1163 (para 20 & 21) , (ix) Baiju Thakur v. Union of India & Ors., B.A. 3765/ 2023, decided on 13.02.2024, by a coordinate Bench of this Court, (x) Shaikh Uzma Feroz Hussain v. State of Maharashtra, W.P.(Crl.) 587/2023, decided on 10.11.2023, by the Supreme Court of India , this Court had assigned reasons for rejecting the prayer for bail of the petitioners though they were in custody for 666 days. The Court refrains from repetitive reference to those cases once again. The decision of the Supreme Court of India in the case of Satender Kumar Antil (supra), continues to be a binding precedent regarding length of custody which may entitle an under trail accused to bail.

10) Therefore, in light of the binding precedent of the judgment of the Supreme Court of India, in the case of Satender Kumar Antil (supra), the Court is of the considered opinion that the petitioners are still not entitled to bail.

11) The other ground taken by the learned counsel for the petitioners for releasing the petitioners on bail is that the petitioners were not Page No.# 6/14

provided with "grounds of arrest". Therefore, the Court has perused the arrest memos in respect of the petitioners, which is available in the scanned copy of the TCR, as received by this Court.

12) In the arrest memo dated 08.05.2022, in respect of Abdul Salik (petitioner no.1), it is mentioned as under:-

ARREST MEMO Writ Petition (Original) No. 539 of 1986 and 592 of 1997

1. Name of accused: Abdul Salik 30 years.

S/o. Lt. Foizul Islam Vill. South Kenti, P.S. Patharkandi, Dist. Karimganj.

2. Case Reference: Patharkandi PS C/No.130/22 u/s 21(c)/25/29 NDPS Act.

3. Grounds of arrest: Sufficient evidence found against him.

4. Signature of witness or relatives:

5. Signature of accused: sd/- (illegible)

6. Date and time of Arrest in the place: 08/05/2022 at 10 AM.

Sd/- illegible.

Signature of Investigating Officer Of PKD PS. Dt. 08/5/22.

13) In the arrest memo dated 08.05.2022, in respect of Abdul Fattha (petitioner no.2), it is mentioned as under:-

Page No.# 7/14

ARREST MEMO Writ Petition (Original) No. 539 of 1986 and 592 of 1997

1. Name of accused: Abdul Fattha 32 years.

S/o. Lt. Foizul Islam Vill. South Kenti, P.S. Patharkandi, Dist. Karimganj.

2. Case Reference: Patharkandi PS C/No.130/22 u/s 21(c)/25/29 NDPS Act.

3. Grounds of arrest: Sufficient evidence found against him.

4. Signature of witness or relatives:

5. Signature of accused: sd/- (illegible)

6. Date and time of Arrest in the place: 08/05/2022 at 10 AM.

Sd/- illegible.

Signature of Investigating Officer Of PKD PS. Dt. 08/5/22.

14) In the quest to understand as to whether there is any guideline or notification for the police of how to fill-up the column relating to "grounds of arrest", it is seen that the learned counsel for the petitioner has not been able to refer to any such statutory prescription, either by way of any Act, Rules or Notification issued by the Government of India, the State of Assam, National Human Rights Commission or by any other statutory authority.

15) The learned counsel for the petitioners has cited the decisions, Page No.# 8/14

referred to hereinbefore. However, none of those decisions lay down the law as to what or how much should be written in the "grounds of arrest" by the police, or as to what extent disclosure should be made by the police at the time of arrest. In the present case in hand, it is the prosecution case that drugs, suspected and later on found to be brown sugar, weighing 262 gram and contained in 19 soap boxes, hidden in haystack was seized from the cow-shed of the joint household of the petitioners and the petitioners were arrested along with another co-accused. Thus, when the petitioners were arrested at that time when drugs were recovered from their compound, the petitioners were conscious and aware that they were being arrested for possession of drugs. Under such circumstances, when the two arrest memos contain the provisions of law under which the petitioners were arrested, i.e. for commission of offence under section 21(C)/25/29 of the NDPS Act, 1985 and when in the column of "grounds of arrest", it is stated that "sufficient evidence are found against him", in the considered opinion of the Court, it cannot be accepted that "grounds of arrest" were not provided and/or served to the petitioners.

16) Coming to the cases cited by the learned counsel for the petitioners, it is observed as follows:-

a. In the case of Vihaan Kumar (supra), the learned counsel for the petitioner has referred to paragraph 14 and 21(f) thereof and has submitted that owing to non-compliance of the requirement of informing the arrested person the grounds of arrest the arrest stands vitiated. However, it is seen that in para 12 thereof, the Supreme Court of India had referred to the Constitution Bench decision in the case of Harikisan v. State of Maharashtra, 1962 SCC OnLine SC 117, of the Page No.# 9/14

requirement to communicate the grounds arrest. In para-13 of the cited case, the Supreme Court of India has also referred to the case of Lallubhai Jogibhai Patel v. Union of India, (1981) 4 SCC 427, wherein it is observed that the detenue must be communicated the grounds of arrest. In the cited case of Vihaan Kumar, the grounds of arrest was not communicated to the appellant, which is not similar to the facts of the case of the petitioner in hand.

b. The case of Prabir Purkayastha (supra), there is a specific observation by the Supreme Court of India in paragraph 7.6 thereof that the grounds of arrest were not informed to the petitioner, either orally or in writing. Moreover, in paragraph 47 also, it has been mentioned to the effect that on perusal of the arrest memo, the same nowhere conveys the grounds of arrest. Thus, the facts in the present case is not similar to that in the cited case of Prabir Purkayastha (supra).

c. In the case of Ashish Kakkar (supra), there is a specific finding by the Supreme Court of India that upon perusing Annexure-P-3, their Lordships could see what has been provided to the appellant was only an arrest memo in the prescribed format, which is meant to be given to the appellant by way of intimation. The same was filled up with the name of the appellant along with place of arrest and additionally, it was written that he was arrested based upon the statement of the co- accused. Therefore, on facts, the present case is not similar to the facts of the cited case of Ashish Kakkar (supra).

Page No.# 10/14

d. In respect of all the other cited case, decided by this Court, the same are taken up together. In the case of Ajit Kumar Sarmah (supra), the petitioner therein was not communicated with the full particulars of the offence leading to his arrest. In the case of Joynal Hussen @ Joynal Hussain & Anr. (supra) , there is a specific finding by the coordinate Bench of this Court that the arrest memos were served on the relative of the petitioners. Similarly, in the case of Mahbubul Hoque (supra), there is a specific finding that at the time of arrest, the provisions of law as contained in section 47 of the BNSS, 2023 was not complied with. Moreover, it was also mentioned that the learned Chief Judicial Magistrate, Sribhumi had opined that as the petitioner had filed a bail application in the Court, it was sufficient to hold that the petitioner had the full knowledge of the case for which he was arrested. This was held to be an unacceptable proposition. Therefore, in view of the specific finding that at the time of arrest, the provision of law as laid down in section 47 and 48 of the BNSS, 2023 were not complied. In the case of Abdullah Al Mahmud Choudhury @ Abdullah Choudhury @ Bablu (supra), it was held that the grounds of arrest were not communicated to the accused. In the case of Jasir Uddin Barbhuiya & Anr. (supra), it was held that the grounds of arrest were not communicated to the accused. In the case of Sri Sumeru Nath (supra), it was held that the ground of arrest was not provided in the arrest memo as well as the provisions of law as contained in section 47 of the BNSS, 2023 was not complied with. In the case of Ajir Ali @ Budu (supra), it was observed that the arrest memo as well as the notice served upon the arrestee under section 47 of the BNSS, 2023, Page No.# 11/14

the ground of arrest was not mentioned. In the case of Kabel Uddin & Anr. (supra), it was held that in the arrest memo, except for the names, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. In the case of Abdul Kadir Laskar (supra), it was held that non furnishing of the ground of arrest was not the consideration for grant of bail, but bail was granted on the length of detention. In the case of Sri Neizosetuo Kire (supra), it was held that the grounds of arrest was not intimated to the petitioner.

17) Therefore, all the cases cited by the learned counsel for the petitioner is found to be distinguishable from the facts of the present case.

18) In the present case, the petitioners have not taken the plea that no grounds of arrest was ever communicated to the petitioner. This plea has been taken up in paragraph-4 of the additional affidavit filed on 28.04.2025, by a brother of the petitioners. The said statement is found contradictory to the contents of Annexure-A and B to the said affidavit, which contains photocopy of the arrest memo dated 08.05.2022 in respect of both the petitioners, where against the column for "grounds of arrest", the following remark has been made- "sufficient evidence found against him". Therefore, the plea taken on behalf of the petitioners by an additional affidavit filed by one Abdul Muktadir appears to be a false plea as the statement that no grounds of arrest was communicated to the petitioners belied by the contents of Annexure-A and B to the said affidavit.

19) Accordingly, from the contents of Annexure-A and B to the said Page No.# 12/14

affidavit filed on behalf of the petitioners on 28.04.2025, the petitioners have admitted that they were served with an arrest memo, which contains grounds of arrest. In other words, the petitioners do not dispute that the memo of arrest was not served on them. As mentioned in paragraph-7 of this order, in both the arrest memos, the grounds of arrest is disclosed as "sufficient evidence found against him".

20) In the said context, the submission of the learned counsel for the petitioners cannot be accepted that grounds of arrest was not served and/or communicated to the petitioners in writing.

21) This Court is not called upon to decide as to whether the remark in the two arrest memos dated 08.05.2022 to the effect that "sufficient evidence found against him" was sufficient or not or how much disclosure should be made in an arrest memo in connection with "grounds of arrest", when the drugs were seized from the compound of the petitioners, stored in the cow-shed, coinciding with the arrest of the petitioners in the same compound.

22) None of the cases cited by the learned counsel for the petitioner lays down any specific parameter of what should be the contents of the grounds of arrest. None of those cases are authority in the point that the remarks in the "ground of arrest" stating that "sufficient evidence found against him" is grossly insufficient information to the petitioners, which vitiates the arrest.

23) The learned counsel for the petitioner has not placed any case law or any Central Govt., State Govt. Notification or orders by the National Human Rights Commission and/or any other statutory authority or orders of any Constitutional Court, laying down what and how much information must be Page No.# 13/14

disclosed in the "grounds of arrest" to be served to an accused person, who is arrested in course of a raid conducted for seizure of contraband like narcotic drugs and psychotropic substances.

24) In the cases cited by the learned counsel for the petitioners, there is a specific finding that grounds of arrest were not served on the accused persons, whereas, in the present case, the scanned copy of the case records produced disclose the very existence of notice under section 50 Cr.P.C. and a separate arrest memo, which discloses grounds of arrest, wherein it is stated that "sufficient evidence found against him". Therefore, merely because the note/remark in the column "grounds of arrest" could have been written in a better way or could have contained more materials, would not be sufficient for this Court to hold that grounds of arrest was not served and/or communicated on the petitioners in the absence of any statutory law or binding precedent, laying down what should be the contents of the grounds of arrest and how much disclosure should be made by an I/O in the "grounds of arrest" while arresting an accused red-handed and/or from the crime scene.

25) Accordingly, two grounds urged by the learned counsel for the petitioners for grant of bail, being (a) lack of progress of trial, and (b) non- communication of the grounds of arrest, cannot be accepted in light of the discussions made on both the points hereinbefore.

26) Resultantly, the prayer for bail is refused and this bail application stands dismissed.

27) We may only request the learned Additional Public Prosecutor to inform his counterpart in the Trial Court to ensure that there should be an Page No.# 14/14

attempt for an early examination of all the witnesses by the prosecution, for which he may transmit a downloaded copy of this order to the jurisdictional Superintendent of Police.

JUDGE

Comparing Assistant