Page No.# 1/9 vs The State Of Assam
2025 Latest Caselaw 5130 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 30 May, 2025

                                                                                       Page No.# 1/9

GAHC010104182025




                                                                               2025:GAU-AS:7056

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

                                  Case No. : Bail Appln./1581/2025

             FAJIJUL KHAN
             S/O- MD. MANNAB ALI R/O- VILLAGE - BARBILA, P.O. - KALAKUCHI, P.S. -
             TAMULPUR, DISTRICT - BAKSA (BTR), ASSAM, PIN - 781367



             VERSUS

             THE STATE OF ASSAM
             REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner     : MR. D P BORAH, MR B PAUL

Advocate for the Respondent : PP, ASSAM,




                                            BEFORE
                         HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
                                              ORDER

30.05.2025

Heard Mr. D.P. Borah, learned counsel for the petitioner. Also heard Mr. P.H. Lohkar, learned Addl. Public Prosecutor for the State.

2. This is an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking regular bail to the petitioner i.e. Fajijul Khan, who was arrested on 19.12.2024 in Page No.# 2/9

connection with Kampur PS Case No. 161/2024 registered under Section 61(2)/123 of BNS, 2023 read with Section 20(c) of NDPS Act, read with Section 4/5 of Assam Bhang and Ganja Prohibition Act, 1958.

3. The brief facts of the case is that one Sri Lakhi Das, Sub-Inspector of Special Task Force, Assam, Guwahati, referring to STF P.S. G.D. Entry no. 15 dated 18.12.202, lodged a written complaint before the Officer-in-Charge of Kampur Police Station on 19.12.2024 inter alia stating that based on an information about trafficking of illegal narcotic drugs in Nagaon/Hojai District, the designated S.T.F. team on 18.12.2024 at about 06.15 P.M. proceeded towards Nagaon/Hojai District in 2 (two) vehicles but on reaching National Highway bypass at Nagaon, the location of the target person was found to be in Dimapur, in the state of Nagaland and as such the search operation was extended till 19.12.2024 and after close monitoring of the target person through his mobile network they were able to detain the bus having contrabands at Rengbeng locality, near Jay Hanuman Line Hotel at about 02.30 P.M. and the passengers inside the bus bearing registration no. AS-31/C-1109 were informed about the intention of detaining the vehicle and the target person inside the vehicle was asked to board down along with his luggage and another person accompanied him was also asked to board down. When they disobeyed their orders, the police personnel had to bring them down from the vehicle alongwith their luggage. On search 4 (four) nos. of bags, 8 (eight) nos. of plastic packets wrapped with plastic cello tapes containing green colour leaves suspected to be ganja were found inside the bags, the weight of the same amounted to 30.653 kg alongwith that 3 (three) nos. of mobile phones were also seized from the accused. After completing all formalities of seizure on the spot, the accused persons were taken into custody and brought to Kampur Police Station for taking necessary lawful actions against the accused. Thereafter, a case was registered and the petitioner was forwarded to the jurisdictional Chief Judicial Magistrate and since 5 months and 11 days has been languishing in judicial custody. Hence, the instant bail application has been filed.

4. Mr. D.P. Borah, learned counsel for the petitioner submits that the arresting authority while arresting the petitioner has not informed the grounds of arrest to him and as such, the fundamental and constitutional rights guaranteed to him under Article 22(1) of the Constitution of India has been totally infringed by the arresting authority. He accordingly submits that the petitioner is entitled to be released forthwith.

5. Per contra, Mr. P.H. Lohkar, learned Additional Public Prosecutor for the State by vehemently opposing the prayer of bail submits that Notice issued under Section 47 of the BNSS indicates that Page No.# 3/9

information as regards grounds of arrest has been informed to the petitioner via this notice at the time of his arrest.

6. I have considered the submissions advanced by the learned Counsels for both the parties and also perused the material available on record including the case diary placed before this Court.

7. The primary ground urged in this bail application is as regard non-compliance of the constitutional and fundamental right of the petitioner guaranteed under Article 21 and 22(1) of the Constitution of India.

8. Apt to refer to Article 21 and 22(1) of the Constitution of India, which 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. Perusal of the aforesaid Articles, it is apparent that an arrestee has a constitutional and fundamental right under the Constitution of India to be informed about the grounds of his arrest at the time of his arrest.

10. In the present case, apt to refer to the Notice issued to the petitioner under Section 47 of the BNSS, which reads as hereunder:

"NOTICE

U/S-47 BNSS

To,

Fajijul Khan(33yrs) S/o- Md. Mannaz Ali Khan Vill- Barbila Village.

PS- Tamulpur Dist-Baksa, Assam Page No.# 4/9

Reference:- Kampur PS Case no 161/24, U/S-61(2)/123 BNS R/W Sec 20(c)/29 of NDPS Act; R/W 4/5 Assam Bhang & Ganja Prohibition Act.

In course of investigation of the above reference case, sufficient evidence collected against you for which you have been arrested on 20/12/2024 at 11 AM in connection with instant case. The offence charged against you falls under purview of non-bailable offence U/S- 61(2)/123 BNS R/W Sec 20(c)/29 of NDPS Act. R/W 4/5 Assam Bhang & Ganja Prohibition Act.

So, you are forwarded to the Honourable Court of Chief Judicial Magistrate, Nagaon (Assam).

       SIGNATURE OF ARRESTEE                                       Investigating officer

                                                                   Kampur PS

                                                                   Nagaon: Assam

       FAJIJUL KHAN

       Signature of Witness

       20-12-24"

11. Perusal of the aforesaid Notice indicates that no facts whatsoever constituting the grounds of arrest is reflected in the said Notice except that he has been arrested on the basis of sufficient evidence collected against him in connection with the case under reference therein.

12. Apt also to refer to the Memo of Arrest, which reads as hereunder:-

"ARREST MEMO

1) Name and particulars of person arrested:- Fajijul Khan (33) S/O- Md. Mannaz Ali Khan Vill-Barbila Village PS-Tamulpur Dist-Baksa, Assam Page No.# 5/9

2) Circumstances/P.S Cases of arrested :- Kampur PS Case no 161/24,U/S-61(2)/123 BNS R/W Sec 20(c)/29 of NDPS Act.

R/W 4/5 Assam Bhang & Ganja Prohibition Act.

          3) Place of arrest                         :- Kampur PS
          4) Date and time of arrested               :- 20/12/24 @ 11 AM
          5) Injuries present at time of arrested     :- As per Inspection Memo.
          (If yes, make Inspection Memo on revise)

6) Signature and name of relative/ Witness to arrested:-

          7) Signature of arrested person            :- FAJIJUL KHAN
          8) Signature & full name of Officer        :- SI Bibhuti Thapa
          9) (Also add any "took" if reqd.           :-
          Note


                                                               Dt.-20/12/24"

13. Perusal of the Memo of Arrest also indicates that except the name and particulars of the petitioner, date and time of arrest and case reference, no other information as regards the offence or grounds of arrest is mentioned.

14. Similarly, the Inspection Memo which is also reproduced hereunder for ready reference does not indicate any particulars as regards the grounds of arrest being intimated to the petitioner:-

"INSPECTION MEMO Writ Petition (Criminal) Nos 539 of 1986 and 592 of 1997

1. Date :- 20/12/2024

2. Case Ref :- Kampur PS Case no 161/24, U/S-61(2)/123 BNS R/W Sec 20 (c/29 of NDPS Act. R/W 4/5 Assam Bhang & Ganja Prohibition Act.

3. Name and Address of the arrestee:- Fajijul Khan(33yn) Page No.# 6/9

S/o-Md. Mannar Ali Khan Vill-Barbila Village 15- Tamulpur, Dist-Baksa, Assam, Assam

4. Wound in Body found at the time of examine:-

5. Name and Designation with seal of M.O. in Duty:-

6. Name and Rank of Officer affecting the arrest:- SI. Bibhuti Thapa

7. Signature of arrestee :- FAJIJUL KHAN

8. Signature of Police Officer who escort the arrested person:-

Signature of the Police Officer 20/12/2024"

15. It appears from the materials placed before this Court that there are no materials available in the case diary to indicate that the grounds of arrest have been informed to the petitioner at the time of his arrest. It appears that in the Notice issued under Section 47 of the BNSS, what was communicated to the petitioner is that he was suspected to have committed an offence as regards the case under reference. That is not sufficient to infer that the fundamental right of the petitioner guaranteed under the Article 22(1) of the Constitution of India is complied with. Moreover, the case record does not indicate any contemporaneous record indicating that the grounds of arrest were informed to the accused.

16. There is no doubt that the requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1) of the Constitution of India. Non-compliance of Article 22(1) will be a violation of the constitutional and fundamental rights guaranteed by the said Article. That apart, it will amount to a violation of Article 21 of the Constitution of India. When a violation of Article 21 and 22 of the Constitution of India is established, the statutory restrictions do not affect the power of the Court to grant bail. In fact, it is the duty of the Court to forthwith order the release of the accused when a violation of Article 22(1) is established.

17. Reference is made to the decision of the Apex Court in the decision of Vihaan Kumar Vs State of Haryana and Anr., reported in 2025 SCC online SC 269. Paragraph 21 of the aforesaid decision is reproduced hereunder for ready reference:

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"21. Therefore, we conclude:

a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

c) When arrested accused alleges non-compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);

d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established."

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18. Reading of the aforesaid judgment, it is abundantly clear that the information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts of the case is imparted and communicated effectively to him and non-compliance of the same will be a violation of the fundamental rights of the accused guaranteed under Article 22(1) of the Constitution of India.

19. In the present case, it is absolutely clear that the grounds of arrest was not informed to the petitioner at the time of his arrest, hence, the arrest of the petitioner is totally illegal. As such, the arrest of the petitioner stands vitiated. That being so, the rigor of Section 37 of the NDPS Act, 1985 does not affect the power of this Court to grant bail to the petitioner. Therefore, further detention of the petitioner in the custody is totally unjustified.

20. In view of the aforesaid, this Court is of the considered opinion that the petitioner is liable to be released forthwith. Accordingly, it is provided that on furnishing of a bail bond of Rs. 50,000/-(Rupees fifty thousand) only, with two sureties of like amount, provided that one surety has to be a Government Servant, to the satisfaction of the learned Special Judge, Nagaon under the conditions: -

(a) shall not leave the territorial jurisdiction of jurisdictional learned Special Judge, under the NDPS Act, without prior written permission from him;

(b) shall deposit his Passport/visa, etc if any, in the court of the learned jurisdictional Special Judge;

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

(d) 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 him from disclosing such facts to the Court or to any police officer; and

(e) 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 Page No.# 9/9

Officer for the purpose of investigation of the case.

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

JUDGE

Comparing Assistant