Page No.# 1/7 vs The State Of Assam
2025 Latest Caselaw 4836 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 20 May, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                         Page No.# 1/7

GAHC010084982025




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

                               Case No. : Bail Appln./1258/2025

            EBAT HUSSAIN @ MD IBAT HUSSAIN AND ANR
            S/O ABDUL HOSEN
            R/O VILL-JHAWDANGA PT.III,
            (KESHARVITA), P.S. MANKACHAR,
            DIST. SOUTH SALMARA MANKACHAR, ASSAM,
            PIN-783135

            2: ABDUL WADUT @ ABDUL ADUT
             S/O ASAD ALI HOQUE
            R/O VILL-JHAWDANGA PT.III

            (KESHARVITA)
             P.S. MANKACHAR
            DIST. SOUTH SALMARA MANKACHAR
             ASSAM
             PIN - 78313

            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. N J DUTTA, RIJUANA BEGUM

Advocate for the Respondent : PP, ASSAM,
                                                                        Page No.# 2/7




                               BEFORE
                  HONOURABLE MRS. JUSTICE MALASRI NANDI

                                     ORDER

20.05.2025

Heard Mr. N.J. Dutta, learned counsel for the petitioners as well as Mr. K. Baishya, learned Additional Public Prosecutor for the State.

2. By filing this application U/S 483 of the BNSS, 2023, the petitioners, namely, (1) Ebat Hussain @ Md Ibat Hussain (2) Abdul Wadut @ Abdul Adut, have sought for bail in connection with NDPS Case No. 161/2023 (arising out of Jalukbari P.S. Case No. 269/2023) under Section 21(c)/29 of NDPS Act, 1985, pending in the Court of learned Additional Sessions Judge No. 5, Kamrup(M), Guwahati, Assam.

3. The factual matrix leading to this bail application is that on 05.05.2023, on the basis of a secret information, the police personnel of Jalukbari police station had conducted a Naka checking in front of DCPW Office and subsequently, a bus bearing Regd. No. AS-01-QC-2372 was detained. During search, 9,200 nos. of suspected Yaba tablets were found and was seized accordingly. Thereafter, a case was registered and apprehended the accused persons in connection with this case.

4. It is submitted by the learned counsel for the petitioners that the petitioners have been languishing in judicial custody for more than two years since their arrest on 06.05.2023. It is also submitted by the learned counsel for the petitioners that after completion of investigation, charge sheet was filed by Page No.# 3/7

the police against the accused/petitioners.

5. It is further submitted by the learned counsel for the petitioners that they have been falsely implicated in this case and they are no way involved in the instant case. It is also submitted that the contraband as alleged in the FIR, has been recovered from one Matibar Bhuyan and the present petitioners have been arrested purely on the statement recorded under Section 67 of NDPS Act of the co-accused Matibar Bhuyan, which is not admissible in the eye of law and the same is elaborately discussed in the case of Toofan Singh vs. The State of Tamil Nadu, reported in (2021) 4 SCC 1.

6 The main thrust of argument for the learned counsel of the petitioners is that no grounds of arrest was communicated to the petitioners in the notice served on them U/S 50 Cr.P.C. (U/S 47 BNSS) which are mandatory in nature, thereby violating the mandates of Articles 21/22 of the Constitution of India. Hence, the petitioners are entitled for bail.

7. In response, learned Addl. P.P has raised a point that the petitioners were arrested on 06.05.2023, as such, the observation in the case of Pankaj Bansal (supra) is not applicable in this case which was delivered only on 03.10.2023 i.e.

after arrest of the petitioners. According to learned Addl. P.P, the judgment and order of the Apex Court in the case of Pankaj Bansal (supra) is prospective and cannot be taken into consideration in granting bail to the petitioners.

8. In this regard, by referring the judgment of Hon'ble Supreme Court vide Civil Appeal No.5707/23 ( Union Territory of Ladakh and Ors. Vs. Jammu and Kashmir National Conference and Anr.) and Kanishk Singha and Anr. Vs. State of

West Bengal vide (2025) INSC 278 , learned counsel for the petitioners has

pointed out that the Hon'ble Supreme Court in the aforesaid cases has held that Page No.# 4/7

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 specially 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 interpreted 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. According to learned counsel for the petitioners, the judgments of Pankaj Bansal as well as Prabir Purkayastha and Vihaan Kumar are squarely applicable to consider the bail of the petitioners.

9. I have considered the submissions of learned counsel for the parties and also perused the trial court record.

10. It is true that the petitioners were arrested prior to the judgment/order of the Hon'ble Supreme Court in the case of Pankaj Bansal Vs. Union of India, reported in (2023) SCC Online SC 1244, wherein it was held that the written ground of arrest must be furnished to the arrested persons and if the same is not complied with, the arrest would be in violation of Section 19 (1) of the PMLA Act, 2002 and consequently, the arrest, subsequent remand of the arrested persons cannot be sustained. But this proposition of law has been expounded by the Hon'ble Supreme Court in the subsequent cases vide Prabir Purkayastha Vs. State (NCT of Delhi) reported in (2024) 8 SCC 254 and Vihaan Kumar Vs.

State of Haryana reported in (2025) SCC Online SC 269.

11. In the case of Prabir Purkayastha (supra), Hon'ble Supreme Court has held that the law laid down in the case of Pankaj Bansal (supra) could be squarely applicable in cases under the UA(P)Act or for that matter, any other offences. The accused persons have a fundamental and statutory right to be informed about the grounds of arrest in writing and the copy of such written grounds of Page No.# 5/7

arrest have to be furnished to the arrested persons as a matter of course and without exception at the earliest and non-supply of written grounds of arrest to the arrested persons would vitiate the arrest, if the case has been charge- sheeted.

12. In the recent case of Vihaan Kumar (supra), the Hon'ble Supreme Court has held that not informing the arrested persons about the grounds of arrest would amount to violation of fundamental right guaranteed under Article 22(1) of the Constitution of India and this alone would be a ground to grant bail to the accused persons even if statutory restrictions exist against the grant of bail.

13. In the case of Prabir Purkayastha(supra), it is specifically stated in para 45 which is reproduced as follows -

"45. We are of the firm opinion that once this court has

interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the courts in the country by virtue of Article 141 of the Constitution of India."

14. In view of the above, the settled principle of law is that an arrested persons must be informing about the grounds of their arrest and detention which is mandatory in nature. Article 22 safeguards the individual against the arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. In the instant case, there is no reflection in the Section 50 notice as well as in the arrest memo issued to the petitioners that the accused petitioners were Page No.# 6/7

informed about the grounds of their arrest in connection with Jalukbari P.S. Case No. 269/2023.

15. Under such backdrop, this Court by following the observation of the Hon'ble Supreme Court as above, is inclined to grant bail to the petitioners.

16. Accordingly, the petitioners, named above, shall be released on bail in connection with NDPS Case No. 161/2023(arising out of Jalukbari P.S. Case No. 269/2023) under Section 21(c)/29 of NDPS Act, on furnishing bail bond of Rs.2,00,000/- (Rupees Two Lakh only) each with two suitable sureties each of the like amount, out of which, one of the sureties should be a Government employee of the State of Assam, to the satisfaction of learned Additional Sessions Judge No. 5, Kamrup(M), Guwahati, Assam.

The direction for bail is further subject to the conditions that the petitioners:

(a) shall not leave the territorial jurisdiction of learned Additional Sessions Judge No. 5, Kamrup(M), Guwahati, Assam without prior written permission from him/her till disposal of the case;

(b) shall regularly attend the trial court and cooperate with the court for early disposal of the case; and

(c) 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 them from disclosing such facts to the Court.

17. It is pertinent to mention here that the findings of the Court that the arrest of the petitioners stands vitiated will not affect the merits of the pending case.

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18. Violation or breach of any condition(s) shall render cancellation of bail.

19. The bail application is disposed of accordingly.

JUDGE

Comparing Assistant