Gauhati High Court

Page No.# 1/6 vs The State Of Assam on 1 May, 2025

                                                                        Page No.# 1/6

GAHC010089402025




                                                                  2025:GAU-AS:5327

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

                               Case No. : Bail Appln./1339/2025

            ATIQUR RAHMAN LASKAR
            SON OF LATE ABDULLAH MIA LASKAR
            R/O VILL-KALINAGAR PART-VII,
            P.S. PANCHGRAM,
            DIST. HAILAKANDI, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. M AHMED, MD I H LASKAR

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                    HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                           ORDER

Date : 01-05-2025

Heard Mr. M. Ahmed, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State respondent.

Page No.# 2/6

2. This application is filed under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested on 28.02.2025 in connection with Badarpur P.S. Case No. 36/2025, under Sections 22(c)/29 of Narcotic Drugs and Psychotropic Substances Act, 1985.

3. It is submitted by Mr. Ahmed, the learned counsel for the petitioner, that the accused/petitioner is arrested in connection with the case on 28.02.2025. He is behind the bars for last more than 2 months. He further submitted that the present accused/petitioner is innocent and there was no recovery from his conscious possession.

4. Mr. Ahmed, the learned counsel for the petitioner further raised the issue that though the grounds of arrest was communicated in the notice issued to him u/s 47 BNSS, grounds of arrest speaks about a case of rape with a minor girl who gave birth a child below the age of 18 which is not at all relevant to the present case and the case is registered u/s 22(c)/29 of the NDPS Act. Accordingly, he submitted that the grounds of arrest which was furnished to the present accused/petitioner cannot be considered as a ground of arrest of the present petitioner. Mr. Ahmed further submitted that considering this aspect of the case for non-communication of the proper grounds of arrest, the accused/petitioner is entitled to bail.

5. In support of his submissions, Mr. Ahmed, learned counsel for the petitioner, has cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

Page No.# 3/6

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

6. Mr. Kaushik, learned Additional Public Prosecutor, submitted in this regard that the case is of commercial quantity and still under the stage of investigation and accordingly he submitted that Case Diary will reveal the actual facts of the case.

7. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, has held in paragraph No. 19 of the judgment as under:

"19. Resultantly, there is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22(1) of the Constitution of India.

21. The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590committed at the time of arresting the accused and the grant of initial police custody remand to the accused.

48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase 'reasons for arrest' and 'grounds of arrest'. The 'reasons for arrest' as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making 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 the Investigating Officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the 'grounds of arrest' would be required to contain all Page No.# 4/6

such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand and to seek bail. Thus, the 'grounds of arrest' would invariably be personal to the accused and cannot be equated with the 'reasons of arrest' which are general in nature."

8. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held as under:

"14. Thus, the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. If the grounds of arrest are not informed as soon as may be after the arrest, it would amount to a violation of the fundamental right of the arrestee guaranteed under Article 22(1). It will also amount to depriving the arrestee of his liberty. The reason is that, as provided in Article 21, no person can be deprived of his liberty except in accordance with the procedure established by law. The procedure established by law also includes what is provided in Article 22(1). Therefore, when a person is arrested without a warrant, and the grounds of arrest are not informed to him, as soon as may be, after the arrest, it will amount to a violation of his fundamental right guaranteed under Article 21 as well. In a given case, if the mandate of Article 22 is not followed while arresting a person or after arresting a person, it will also violate fundamental right to liberty guaranteed under Article 21, and the arrest will be rendered illegal. On the failure to comply with the requirement of informing grounds of arrest as soon as may be after the arrest, the arrest is vitiated. Once the arrest is held to be vitiated, the person arrested cannot remain in custody even for a second."

9. In the instant case also, as discussed above, it is seen that there is no proper mention of grounds of arrest in the Arrest Memo, Inspection Memo as well as in the Notice issued to the present accused/petitioner under Section 47 BNSS. The grounds of arrest mentioned is not relevant with the present case. The mentioning of grounds of arrest is not only a formality but a mandatory constitutional requirement as held by the Hon'ble Apex Court. So, from the proviso of Section 50 of Cr. P.C., corresponding to Section 47 BNSS it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of Page No.# 5/6

India and in such cases. , in spite of the statutory restrictions under Section 37 of the NDPS Act, this Court is of the considered opinion that for the violation of the constitution mandate contained under Article 22(1) of the Constitution of India, the arrest of the petitioner is vitiated and it may be a sufficient ground to consider his bail application.

10. In view of the entire discussions made above, it is the opinion of this Court that the period of incarceration undergone by the accused/petitioner may not be a good ground for considering his bail application at this stage. However, considering the fact that no proper grounds of arrest were communicated to the petitioner or mentioned in the Arrest Memo, Inspection Memo as well as in the Notice issued to the present accused/petitioner under Section 47 BNSS, rather, it reveals the negligent conduct of the I/O; this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

11. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only with 2 (two) sureties of like amount, provided that one surety has to be a government servant, to the satisfaction of the learned Special Judge, Sribhumi, the accused/petitioner, namely, Atiqur Rahman Laskar, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Special Judge, Sribhumi, on each and every date to be fixed by the Court;

(ii) that the petitioner 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 Page No.# 6/6

the Court or to any police officer;