Gauhati High Court
Md Rajak Ali Alias Dhan Ali Alias Kalia vs The State Of Assam on 20 May, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
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GAHC010079612025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1170/2025
MD RAJAK ALI ALIAS DHAN ALI ALIAS KALIA
S/O ABDUL BAREK
R/O CHANGARI SILA
KORAIBARI
P.S. CHANGSARI
DIST. KAMRUP
ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP
ASSAM
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Advocate for : MR. Y S MANNAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 20.05.2025
Heard Mr. N.J. Dutta, learned counsel for the petitioner as well as Mr. M.P.
Goswami, learned Additional Public Prosecutor for the State.
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2. By filing this application U/S 483 of the BNSS, 2023, the petitioner, namely,
Md. Rajak Ali @ Dhan Ali @ Kalia, has sought for bail in connection with
NDPS Case No. 187/2024 (arising out of STF Police Station case No. 20/2023)
under Section 21(C)/25/29 of NDPS Act, 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 28.11.2023, an
FIR has been lodged before the Officer-in-Charge, STF Police Station alleging
inter alia that on the same day at about 07.00 A.M, an information was received
regarding transportation of narcotic drugs from Manipur by a TATA Yodha goods
carrier vehicle bearing registration no.AS 25/EC 4464, towards Gauripur area.
The said TATA Yodha vehicle would be escorted by Hyundai Creta Car bearing
registration no. AS 01/FJ 7890 and Maruti Swift Car bearing registration no. AS
15/P 2222.
4. It is submitted by the learned counsel for the petitioner that the petitioner
has been languishing in judicial custody for more than one year since his arrest
on 10.05.2024. It is further submitted that on the basis of the statement of co-
accused Arjun Basfor under Section 67 of NDPS Act, the present petitioner was
arrested which is inadmissible in the eye of law.
5. By referring the judgment of Hon'ble Supreme Court vide Pankaj Bansal Vs
Union of India, reported in (2023) SCC Online (SC) 1244, Prabir Purkayastha Vs.
State (NCT of Delhi) reported in 2024 SCC Online SC 934, (2025) SCC Online SC
240 (Directorate of Enforcement Vs. Subhash Sharma and Vihaan Kumar vs.
State of Haryana, reported in 2025 SCC Online SC 269, the learned counsel for
the petitioner has submitted that no grounds of arrest was communicated to the
petitioner in the notice served on him U/S 50 Cr.P.C. (U/S 47 BNSS) or the arrest
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memo which is mandatory in nature, thereby violating the mandates of Article
21/22 of the Constitution of India. Hence, the petitioner is entitled for bail.
6. Per contra, Mr. Goswami, learned counsel appearing for the State, has
submitted that commercial quantity of contraband items were recovered from
the conscious possession of the petitioner. As the commercial quantity of
contraband items are involved in the instant case as such, the embargo under
Section 37 of NDPS Act will come into play. The petitioner, herein this case is a
habitual offender. Hence, he has opposed in granting bail to the petitioner.
However, he has admitted that the grounds of arrest have not been mentioned
in the arrest memo or the Section 50 notice issued to the petitioner.
7. Having heard the learned counsel for the parties and on perusal of the trial
court record, it is not in dispute that the notice served to the petitioner u/s 50
Cr.P.C. as well as arrest memo show that no grounds of arrest have been
communicated to the petitioner at the time of his arrest.
8. In the case of Pankaj Bansal (supra) , the Hon'ble Supreme Court has held
that the written grounds of arrest must be furnished to the arrested person as a
matter of course and without exception. If the same is not complied with, the
arrest would be in violation of Section 19(1) of the PMLA Act, 2002.
Consequently, the arrest and the subsequent remand of the arrested person
cannot be sustained.
9. In the case vide Prabir Purkayastha (supra) , wherein it has been
categorically held that the law laid down in the case of Pankaj Bansal (supra)
would be squarely applicable in cases under the UA (P) Act or for that matter
any other offences. The accused has fundamental and statutory right to be
informed about the grounds of arrest in writing and a copy of such written
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grounds of arrest have to be furnished to the arrested person as a matter of
course and without exception at the earliest and non-supply of written grounds
of arrest to the arrested person would vitiate the arrest even if the case has
been charge-sheeted.
10. In the case of Subhash Sharma (supra), it was held as follows-
"Once a court, while dealing with a bail application, finds that the
fundamental rights of the accused under Articles 21 and 22 of the
Constitution of India have been violated while arresting the accused or
after arresting him, it is the duty of the Court dealing with the bail
application to release the accused on bail. The reason is that the arrest in
such cases stands vitiated. It is the duty of every Court to uphold the
fundamental rights guaranteed under Articles 21 and 22 of the
Constitution. Therefore, when arrest is illegal or vitiated, bail cannot be
denied on the grounds of non-fulfillment of twin tests under clause (ii) of
sub-section 1 of Section 45 of PMLA."
11. In the case of Vihaan Kumar (supra), wherein the Hon'ble Apex Court has
referred the case of Pankaj Bansal (supra) and the case of Prabir Purkayastha
(Supra) and the Court held as follows -
"28. The language used in Article 22(1) and Article 22(5) of the
Constitution of India regarding the communication of the grounds is
exactly the identical. Neither of the constitutional provisions require that
the "grounds" of "arrest" or "detention", as per the case may be, must be
communicated in writing. Thus, interpretation to this important facet of
the fundamental right as made by the Constitution Bench while examining
the scope of Article 22(5) of the Constitution of India would ipso facto
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apply to Article 22(1) of the Constitution of India insofar as the
requirement to communicate the grounds of arrest is concerned.
29. Hence, we have no hesitation in reiterating that the requirement to
communicate the grounds of arrest or the grounds of detention in writing
to a person arrested in connection with an offence or a person placed
under preventive detention as provided under Article 22(1) and Article
22(5) of the Constitution of India is sacrosanct and cannot be breached
under any situation. Non-compliance of this constitutional requirement
and statutory mandate would lead to the custody or the detention being
rendered illegal, as the case may be."
12. Situated thus, the settled principle of law is that an arrested person must
be informed about the grounds of his arrest and detention which is mandatory
in nature. Article 22 safeguards the individual against 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 Section 50 Cr.P.C. notice or the arrest memo served to the
petitioner that the accused petitioner was informed about the grounds of his
arrest in connection with STF Police Station Case No. 20/2023. Under such
backdrop, this Court by following the observation of the Hon'ble Supreme Court
as above, is inclined to grant bail to the petitioner.
13. Accordingly, the petitioner, named above, shall be released on bail in
connection with NDPS Case No. 187/2024 (arising out of STF Police Station case
No. 20/2023) under Section 21(C)/25/29 of NDPS Act, on furnishing bail bond of
Rs.2,00,000/- (Rupees Two Lakh only) with two suitable sureties of
the like amount, out of which, one of the sureties should be a Government
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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 petitioner:
(a) shall not leave the territorial jurisdiction of 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.
14. The observation made by the Court is for the purpose of this bail
application only, not on merits of the case.
15. Violation or breach of any condition(s) shall render cancellation of bail.
16. The bail application is disposed of accordingly.
JUDGE
JUDGE
Comparing Assistant
