Mumit Ahmed vs The State Of Assam
2025 Latest Caselaw 57 Gua

Gauhati High Court

Mumit Ahmed vs The State Of Assam on 1 May, 2025

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GAHC010245072024




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

                               Case No. : Bail Appln./3574/2024

            MUMIT AHMED
            SON OF FAKAR ALI,
            R/O VILLAGE NORTH LAFAISHAIL, P.S. KARIMGANJ,
            DISTRICT KARIMGANJ, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR H R CHOUDHURY, S. TALUKDAR,A S PRODHANI

Advocate for the Respondent : PP, ASSAM,




                                    BEFORE
                    HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                                           ORDER

01.05.2025

Heard Mr. H.R. Choudhury, learned counsel for the petitioner. Also heard Mr. K.K. Das, learned Addl. Public Prosecutor for the State respondent.

2. This is an application under Section 483 of BNSS, 2023 for granting regular Page No.# 2/10

bail to the petitioner, i.e. Mumit Ahmed, who has been arrested on 01.09.2022 in connection with Special NDPS Case No. 129/2022 arising out of Karimganj P.S. Case No. 525/2022 pending before the learned Court of Sessions Judge, Sribhumi.

3. The facts of the case is that one SI(P) Manashjyoti Burhagohain, Karimganj PS lodged an FIR on 01.09.2022 alleging inter alia that based on specific information was received from Officer-in-charge, Karimganj from Unit G Cell, 7 Bn, Camp Lakhibazar regarding apprehension of one drugs paddler while he was travelling to throw away one black colour polythene containing suspected to be drugs over Indo-Bangladesh international border fencing near North Lafashail. Accordingly, GDE was made by the O/C karimganj PS. The police party handed by one SI Nayanjit Das along with staff arrived at the spot at 1.50 PM and found that one person was cordoned by BSF personnel's near Indo- Bangladesh international border line. At that time a few persons have assembled there. Thereafter, the police party approached independent witness. After observing the all formalities, the police party searched the body of Mumit Ahmed, S/O- Fakar Ali of vill- North Lafashail, Po- Lakhibazar, PS &Dist- Karimganj and concealed 20 (twenty) packets in colour blue containing suspected yaba tablets approximate 447 grams (net weight) in his blue chequered lungi have been recovered during the search. Accordingly the case was registered vide Karimganj PS case No.525/2022 U/S- 22(c) of NDPS Act 1985. Accordingly a case was registered and the petitioner alongwith another co-accused was arrested and forwarded before the Chief Judicial Magistrate on 02.09.2022. Thereafter, charge-sheet was filed and after filing of the charge-sheet, trial commenced.

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4. Mr. H.R. Choudhury, 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. K.K. Das, learned Additional Public Prosecutor draws the attention of the Court from the case records that the Notice issued under Section 50 of Cr.P.C to the petitioner indicate that the grounds of such arrest has been informed to the petitioner at the time of his arrest and the ground of arrest is also communicated to the petitioner.

6. I have considered the submissions advanced by the learned counsels for both the parties and also perused the materials available on record.

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. 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."

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8. Perusal of the aforesaid provision, 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.

9. In the present case, apt to refer to the notice issued to the petitioner under Section 50 of the Cr.P.C., which reads as hereunder: -

"NOTICE (Ground of Arrest U/S- 50 Cr.PC) Ref: Karimganj P.S. C/No. 525/2022 u/s 22(c) NDPS Act To, Sri. Mumit Ahmed, S/o Fakar Uddin Add: Vill. North Lafashail P.S. & Dist- Karimganj Dist. Karimganj, Mobile No. .........

You are hereby informed in written that you are arrested in connection with above noted case as sufficient evidence have been found against you involving to the case. The offence charged on you is non bailable one. So you are forwarded to court custody on 02.09.2022 and the ground of arrest is communicated as per the provision of law. You may proceed to honourable court for your bail.

Signature of the arrested accused person MUMIT AHMED

Hamim Sikdar Signature of the arresting Police Officer"

10. 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. Interestingly, it is mentioned in the said notice that the ground of arrest is communicated as per the Page No.# 5/10

provisions of law. However, upon careful scrutiny of the notice, there is no information whatsoever as regards the brief facts constituting the alleged offence.

11. Apt also to refer to the memo of arrest, which reads as hereunder: -

"ARREST MEMO

I. Name and Add. Of Accused Person :Mumit Ahmed age 26 S/o Fakar Uddin Vill -North Lafashail P.S. Dist-Karimganj (Assam)

2. Case Reference : Karimganj P.S. Case No. 525/22 U/s 22(c) NDPS Act.

3. Ground of Arrest : As per forwarding report

4. Signature of witness of relatives : Illegible

5. Signature of Arrestee : MUMIT AHMED

6. Date and Time of Arrest in the place: 02.09.2022 at 12.30 pm

Hamim Sikdar Signature of the Investigation Officer"

12. 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. 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: -

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"INSPECTION MEMO

P.S. Karimganj WRIT PETITION (ORIGINAL) NO. 893 OF 1986 AND 592 OF 1997

1. Date : 02.09.2022

2. Case reference : Karimganj P.S. C/No. 525/22 u/s 22(c) NDPS Act.

3. Name and Addressed of accused : Mumit Ahmed age 26 years S/o Fakar Uddin Vill -North Lafashail P.S. Dist-Karimganj (Assam)

4. Wound in body at the time of Medical Examination :

5. Name and Addressed of Police of Effecting arrest: Hamim Sikdar

6. Name and Designation of M.O. on duty :

7. Signature of Police Officer who escort the arrestee:

Hamim Sikdar Signature of the Investigation Officer"

13. 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. Moreover, the case record does not indicate any contemporaneous record indicating that the grounds of arrest were informed to the accused.

14. 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.

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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.

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

"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 requirernents 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, Page No.# 8/10

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."

16. 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 Artice 22(1) of the Constitution of India.

17. In the present case, except the noting in Section 50 Cr.PC notice to the effect that the grounds of arrest has been communicated to the petitioner as per law, there is nothing in the case diary/case record/materials available on record to indicate that such grounds have been communicated to the petitioner. Mere mentioning that the ground of arrest has been communicated is not sufficient for the I.O to discharge the burden as regards compliance of Article 22(1) of the Constitution of India is concerned, when non-compliance of the same is urged by the arrestee. Therefore, 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 Page No.# 9/10

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.

18. 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 Sessions Judge, Sribhumi under the conditions: -

(a) shall not leave the territorial jurisdiction of jurisdictional learned Sessions Judge, Sribhumi 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 Sessions 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 Page No.# 10/10

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.

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

JUDGE

Comparing Assistant