Page No.# 1/9 vs The State Of Assam
2025 Latest Caselaw 4953 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 26 May, 2025

                                                                           Page No.# 1/9

GAHC010094132025




                                                                     2025:GAU-AS:6685

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

                                  Case No. : Bail Appln./1419/2025

            ANASH
            S/O MD. MAOLANA ALIMUDDIN
            R/O LILONG USOIPOKPI THAROULOK,
            PS LILONG, DISTRICT THOUBAL,
            MANIPUR
            PIN-795130

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM

Advocate for the Petitioner   :     MR. D GOGOI,
                                    ZAKIR HUSSAIN,NIKATO WOTSA,
                                    MS T WAPANGLA

Advocate for the Respondent : PP, ASSAM,


                                    BEFORE
                    HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                             ORDER

Date : 26.05.2025

Heard Mr. N. Wotsa, learned counsel for the petitioner and Mr. R. R. Kaushik, learned Addl. Public Prosecutor for the State respondents.

2. This second bail application has been filed under Section 483 of the BNSS, 2023, seeking grant of regular bail to the petitioner, namely, Md. Anash, who Page No.# 2/9

was arrested on 28.10.2023, in connection with Dillai P.S. Case No. 60/2023, arising out of G.R. Case No. 321/2023 registered under Section 21(c) of the NDPS Act, 1985.

3. The brief facts of the case are that the Sub-Inspector of Dillai Police Station, Karbi Anglong, Assam lodged the FIR on 28.10.2023, alleging inter-alia that about 10.30 PM, upon receiving an information from IC, Lahorijan PP, Police Station-Dillai, regarding detention of one white colour XUV 300 bearing registration No. AS26E2081 coming from Manipur suspected to be carrying drugs and as such arrested the petitioner in connection with the aforesaid case.

4. It is the further case of the prosecution that out of total 50 nos. of soap boxes, 11 soap boxes were hidden inside the AC and music system slot and 39 nos. of soap boxes were recovered from the right side of the rear portion of the car, collectively weighing 637.28 grams, which was driven by the petitioner. Accordingly, an FIR was registered.

5. Pertinent that earlier this Court in Bail Appln. 983/2025 has rejected the bail application of the petitioner, vide order dated 29.04.2025.

6. Mr. N. Wotsa, learned counsel for the petitioner submits that the grounds of arrest were not informed to the petitioner for which his fundamental right under Article 22(1) of the Constitution of India has been infringed and violated. He further submits that, however, the said ground was inadvertently not taken up at the time of filing the first bail application. He accordingly submits that the arrest being illegal for non-compliance of the constitutional mandatory obligation, a change of circumstances having arises, the second bail application Page No.# 3/9

should be allowed, as prayed for.

7. Per contra, Mr. R. R. Kaushik, learned Addl. P.P., Assam fairly submits that it is clearly discernible from the notice under Section 50 of Cr.PC issued to the petitioner as well as the arrest memo dated 28.10.2023 that no information as regards the facts constituting the arrest has been informed to the petitioner.

8. I have given my prudent consideration to the arguments advanced by the learned counsels for both the parties and also perused the materials available on record.

9. The only ground urged in this bail application is as regards non-compliance of the Constitutional mandatory provision contained under Article 22(1) of the Constitution of India. Article 21 and 22(1) of the Constitution of India reads as hereunder:-

"21. Protection of life and personal liberty -- No person shall be

deprived of his life or personal liberty except according to procedure established by law.

22. Protection against arrest and detention in certain cases -- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

10. Reading of the aforesaid provision, it appears that while Article 21 protects Page No.# 4/9

the arrestee/detainee from being arrested without following the established procedure of law, Article 22(1) provides twofold protections to an arrested person. Firstly, it is mandatory for the arresting authorities to inform the arrested person, as soon as may be, the grounds of his arrest and his right to bail and secondly to produce the arrested person before the jurisdictional Magistrate within 24 hours of his arrest. Therefore, it is the fundamental right of an arrestee to be informed the grounds of his arrest and his right to consult and to be defended by a legal practitioner of his choice and to be produced before the nearest Magistrate within 24 hours of his arrest. This right is guaranteed to an arrestee under the Constitution of India; if it is taken away from the arrestee, it would be depriving of his right to liberty, which being his precious fundamental right, such arrest would be total violation of his fundamental right (Referred State of Madhya Pradesh vs. Sobharam and others reported in AIR 1996 SC 1910).

11. At this stage to refer to the Section 50 Cr.PC notice issued to the petitioner, which is extracted hereunder for ready reference:-

"NOTICE OF INFORMATION U/S 50 CrPC (Information to arrested person on grounds of arrest and right to ball)

To, Md. Anash-23 yrs S/O-Md. Riyaj Uddin, R/O- Lilong Usolpokpi Tharoulok PS-Lilong, Dist- Thoubal, Manipur

Dear Sir/Madam,

You are hereby information of your arrest in connection with the below referred case/circumstances. The case is Bail able/Non-Bail able to Police Page No.# 5/9

Case No & Penal Section of low/GD reference and circumstances and PS: Dillai PS Case No. 60/2023 U/S 21 (c) NDPS Act.

Further intimated that you should arrange for sureties on your behalf to release you on ball (This paragraph is not applicable if it is a non-bail-able to Police). There is no surety for his bail.

Signature of arrested person:-

Signature of arresting Officer

Designation:- SI of Police

Sesalans Judge Karbi Anglong Dist, Ele

PS-Dillai Police Station

Date and Time: -28-10-2023 @ 10:50 PM"

12. Reading of the aforesaid notice, it is clear that no information as regards the ground of arrest is mentioned in the aforesaid notice. It is only his name and the case number and that he should arrange for sureties on his behalf to be released on bail is mentioned. Reading of the aforesaid, it is absolutely clear that no information whatsoever constituting the brief facts of the arrest of the petitioner is given to the petitioner at the time of his arrest.

13. Apt also to refer to the arrest memo, which is reproduced hereunder for ready reference:-

"ARREST MEMO

1. Name and particulars of person arrested-

Md. Anash-23 yrs S/O- Md. Riyaj Uddin, R/D- Lilong Usolpokpi Tharoulok, PS- Lilong, Dist Thoubal, Menipur Page No.# 6/9

2. Circumstances (includes arrest done U/S 42 CrPC) and G.D reference of Police Station or Out Post/Case no & Section of Law and Police Station Dillal PS Case No. 80/2023 U/S 21 (c) NDPS Act.

3. Place of arrest: Dillal Police Station

4. Date and time of arrest-28-10-20 10:50 PM

5. Injuries present at the time of arrest- Medical report enclosed

6. Whether the arrested person forcibly resisted the Endeavour to arrest him?- No

7. If arrested person forcibly resisted the arrest, what are the means used by the Police Officer to effect the arrest? NA

8. Whether the accusations against arrested person are bailable or non bailable whether?:- non boilable.

9. If the accusations against the arrested person are bailable, whether the arresting officers intimated the arrested person the he/she is entitled to bail and that and he may arrange for sureties on his behalf (ref- Sec 50 (2) Cr.PC)

10. Signature, name and address of witnesses to arrest

SI No

Sl. No Name and address of witness Signature with date and time

1. UBC 499, Mukibur Rahman, Dillai Police Station

2. HG Dilip Mazumder, Dillai Police Station, Karbi Anglong, Assam

11. Signature of arrested person.

12. Signature, name and designation of arresting Officer with date and time."

14. Reading of the aforesaid arrest memo, it appears that except his details, no Page No.# 7/9

information constituting the brief facts of the arrest and/or the grounds of arrest is intimated or informed to the petitioner.

15. That being so, it is established that the fundamental right of the accused petitioner under Article 21 and 22(1) of the Constitution of India has been violated.

16. Reference in this regard is made to the decision of the Apex Court in the case of Directorate of Enforcement vs. Subhas Sharma, reported in (2025) SCC Online SC 240, wherein the Apex Court has clearly held that in the event, there is a violation of the fundamental right of the petitioner in relation to his arrest, this Court has no choice but to grant bail. Paragraph 8 and 9 of the aforesaid judgment is reproduced hereunder for ready reference:-

"8. 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.

9. Therefore, when arrest is illegal or is vitiated, bail cannot be denied on the grounds of non-fulfilment of twin tests under clause (ii) of sub-section 1 of Section 45 of PMLA."

17. In view of the above, reference is also made to the decision of the Apex Court in the case of Vihaan Kumar vs. State of Haryana & Anr, reported in Page No.# 8/9

(2025) SCC OnLine SC 269, wherein the Apex Court has clearly held that in the event, there is a violation of Article 21 and 22(1) of the Constitution of India, the statutory restriction shall not also affect the power of this Court to grant bail.

18. In the present case, it is absolutely clear that the grounds of arrest were not informed to the accused petitioner at the time of his arrest. Hence, the arrest of the accused petitioner is totally illegal. As such, the arrest of the accused petitioner stands vitiated.

19. That being so, the rigor of Section 37 of the NDPS Act, 1985 shall not affect the power of this Court to grant bail to the accused petitioner. Therefore, the detention of the accused petitioner in custody is totally unjustified.

20. In view of the foregoing, this Court is of the unhesitant view that the accused petitioner is liable to be released on bail forthwith. Accordingly, the accused petitioner, named above, shall be released on bail in connection with the aforementioned case on furnishing a bail bond of Rs. 50,000/-, with two sureties of like amount, provided that one surety has to be a Government Servant, to the satisfaction of the learned Trial Court subject to the conditions that the petitioner : -

(a) shall not leave the territorial jurisdiction of the Trial Court, without prior written permission from the Court;

(b) shall not hamper with the investigation, or tamper with the evidence of the case;

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(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 or to any police officer; and

(d) shall appear before the Investigating Police Officer once in a week until the entire investigation of the case is completed and as and when called by the Investigating Police Officer for the purpose of investigation of the case.

21. In terms of the above, the bail application stands allowed and disposed of.

JUDGE

Comparing Assistant