Gauhati High Court

Page No.# 1/8 vs The State Of Assam on 26 May, 2025

                                                                   Page No.# 1/8

GAHC010100682025




                                                                 2025:GAU-
AS:6686

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

                              Case No. : Bail Appln./1563/2025

            TOZZAMMIL HOQUE
            S/O LATE GULLZAR HUSSAIN
            R/O SOUTH SALMARA PART-II
            P.S. SOUTH SALMARA
            DIST. SOUTH SALMARA MANKACHAR, ASSAM

            VERSUS

            THE STATE OF ASSAM
            REP BY THE LEARNED PP, ASSAM

Advocate for the Petitioner   : MR. S M MOLLAH, MS. F BEGUM

Advocate for the Respondent : PP, ASSAM,

                                  BEFORE
                  HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
                                  ORDER

Date : 26.05.2025

Heard Mr. S.M. Mollah, learned counsel for the petitioner and Mr. R. R. Kaushik, learned Addl. Public Prosecutor for the State respondents.

2. This application has been filed under Section 483 of the BNSS, 2023, seeking grant of regular bail to the petitioner, namely, Tozzammil Hoque, who was arrested on 07.01.2025, in connection with South Salmara P.S. Case No. 04/2025 registered under Sections 21(b)/22(C)/29 of the NDPS Page No.# 2/8

Act, 1985.

3. The brief facts of the case are that on 05.01.2025, one Sub-Inspector (P) of South Salmara Police Station lodged an FIR before the Officer-in- Charge of South Salmara Police Station, alleging inter-alia that on the same night at around 11.30 PM, on the basis of secret information, the informant along with other staff of South Salmara Police Station raided the house of the petitioner and recovered huge quantity of alleged contraband articles and apprehended the petitioner and one person, namely, Asif Ali & Kandu and seized the contraband in front of independent witnesses. Accordingly, the case was registered.

4. Pertinent that the 1st application of the petitioner was dismissed, as being withdrawn by the petitioner, vide order dated 01.05.2025.

5. Mr. S. M. Mollah, 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 accordingly submits that the arrest of the petitioner being illegal is liable to be released forthwith.

6. Per contra, Mr. R. R. Kaushik, learned Addl. P.P., Assam fairly submits that it is clearly discernible from the notice under Section 47 BNSS issued to the petitioner as well as the arrest memo that no information as regards the facts constituting the arrest has been informed to the petitioner.

7. I have given my prudent consideration to the arguments advanced by Page No.# 3/8

the learned counsels for both the parties and also perused the materials available on record.

8. 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.

9. Reading of the aforesaid provision, it appears that while Article 21 protects 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 authority 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 Page No.# 4/8

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).

10. At this stage to refer to the Section 47 of the BNSS notice issued to the petitioner, which is extracted hereunder for ready reference:-

"NOTICE U/S 47 BNSS

To, Shri/Smt/Md/Musstt - Tozzammil Hoque Age - 27 years S/O,D/O,W/O - Lt. Gulzar Hussain Village - South Salmara Post Office - South Salmara Police Station - South Salmara District - SSM-MKCR(Assam) Reference - South Salmara P.S. Case No. 04/25 U/S -21(b)/22(C)/29 NDPS Act

You are hereby information that you are under arrest in connection with above reference case in non-bailable to police. So, you are forwarded to the Hon'ble Court. You may submit petition before the Hon'ble Court.

Signature of arrestee

Signature of I/O"

11. Reading of the aforesaid notice, it is clear that no information as Page No.# 5/8

regards the ground of arrest is mentioned in the aforesaid notice. It is only his name and the case number and as regards his right to 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.

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

"ARREST MEMO

1. Police Station - South Salmara

2. Case reference with Sec. of law - SSm PS C/no. 04/25, u/s 21(b)/22(C)/29 NDPS Act

3. Name & Address - Tozzammil Hoque, 47 years, S/o-Lat Gulzar Hussain, Vill-South Salmara Pt.II, P.S. South Salmara, Dist. SSMMkcr (Assam)

4. Date & time of arrest -06.01.2025 at 8 pm

5. Place of arrest - At Police Station

6. Witness of accused at the time of arrest - Monjila Khatun

7. Any injury at the time of arrest- As per inspection memo

8. Signature of arrestee - Tozammil Hoque

9. Name of the Police Officer- SI Jayanta Rajkhowa

Signature of Investigating Officer ."

13. Reading of the aforesaid arrest memo, it appears that except his details, no information constituting the brief facts of the arrest and/or the grounds of arrest is intimated or informed to the petitioner.

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14. 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.

15. 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."

16. 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 (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 Page No.# 7/8

the Constitution of India, the statutory restriction shall not also affect the power of this Court to grant bail.

17. 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.

18. 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.

19. 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 of 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 him;

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

(c) shall not, directly or indirectly, make any inducement, threat or Page No.# 8/8

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