Motiar Rahman vs The Union Of India
2025 Latest Caselaw 589 Gua

Gauhati High Court

Motiar Rahman vs The Union Of India on 15 May, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                         Page No.# 1/6

GAHC010058722025




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

                                Case No. : Bail Appln./864/2025

            MOTIAR RAHMAN
            S/O AMIR ALI SEIKH @ AMIR ALI
            R/O VILL-BAUSERKUTI
            P.O. KHERBARI
            P.S. AGOMONI
            DIST. DHUBRI, ASSAM



            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE STANDING COUNSEL, NARCOTICS CONTROL
            BUREAU, GUWAHATI ZONAL UNIT,GUWAHATI, ASSAM



Advocate for the Petitioner   : MR. N N B CHOUDHURY, MS. K DEY

Advocate for the Respondent : SC, NCB,




                                  BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                           ORDER

Date : 15.05.2025

Heard Mr. N.N.B. Choudhury, learned counsel for the petitioner as well as Ms. M. Deka, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Page No.# 2/6

Standing counsel, NCB.

2. By filing this application U/S 483 of the BNSS, 2023, the petitioner, namely, Motiar Rahman, has sought for bail in connection with NDPS Case No. 300/2024 (arising out of NCB Crime No. 02/2024) under Section 8(C) r/w Section 22(C)/29 of NDPS Act, pending in the Court of learned Additional Sessions Judge No. 5, Kamrup(M), Guwahati, Assam.

3. The factual matrix leading to this bail application is that on 02.03.2024, on the basis of secret information, the intelligence officer, NCB moved at Guwahati Railway Station on 03.03.2024 at about 7 a.m. Thereafter, search was conducted on Vivek Express Train (22504) and found one Debashish Paul was carrying huge quantity of Methamphetamine tablets weighing about 3.389 kg and the same was recovered and seized. Accordingly, a case was registered.

4. It is submitted by the learned counsel for the petitioner that the petitioner has been languishing in judicial custody for more than one year since his arrest on 05.03.2024. It is further submitted that on being searched the house of the petitioner, no any contraband item was recovered from his possession or his house. On the basis of the statement of co-accused Debashish Paul under Section 67 of NDPS Act, the present petitioner was arrested.

5. By referring the judgment of Hon'ble Supreme Court vide Pankaj Bansal Vs Union of India, reported in (2023) SCC Online (SC) 1244, Prabir Purkayastha Vs. State (NCT of Delhi) reported in 2024 SCC Online SC 934, (2025) SCC Online SC 240 (Directorate of Enforcement Vs. Subhash Sharma and Vihaan Kumar vs. State of Haryana, reported in 2025 SCC Online SC 269, the learned counsel for the petitioner has submitted that no grounds of arrest was communicated to the Page No.# 3/6

petitioner in the notice served on him U/S 50 Cr.P.C. (U/S 47 BNSS) or the arrest memo which is mandatory in nature, thereby violating the mandates of Article 21/22 of the Constitution of India. Hence, the petitioner is entitled for bail.

6. Per contra, Ms. Deka, learned counsel appears on behalf of Mr. S.C. Keyal, learned Standing counsel, NCB has submitted that as the commercial quantity of contraband items are involved in the instant case as such, the embargo under Section 37 of NDPS Act will come into play and the petitioner was supposed to be the receiver of such contraband which was seized in connection with this case. Hence, she has opposed in granting bail to the petitioner. However, she has admitted that the grounds of arrest have not been mentioned in the arrest memo or the Section 50 notice issued to the petitioner.

7. Having heard the learned counsel for the parties and on perusal of the trial court record, it is not in dispute that the notice served to the petitioner u/s 50 Cr.P.C. as well as arrest memo show that no grounds of arrest have been communicated to the petitioner at the time of his arrest.

8. In the case of Pankaj Bansal (supra) , the Hon'ble Supreme Court has held that the written grounds of arrest must be furnished to the arrested person as a matter of course and without exception. If the same is not complied with, the arrest would be in violation of Section 19(1) of the PMLA Act, 2002. Consequently, the arrest and the subsequent remand of the arrested person cannot be sustained.

9. In the case vide Prabir Purkayastha (supra) , wherein it has been categorically held that the law laid down in the case of Pankaj Bansal (supra) would be squarely applicable in cases under the UA (P) Act or for that matter any other offences. The accused has fundamental and statutory right to be Page No.# 4/6

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 and non-supply of written grounds of arrest to the arrested person would vitiate the arrest even if the case has been charge-sheeted.

10. In the case of Subhash Sharma (supra), it was held as follows-

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

11. In the case of Vihaan Kumar (supra), wherein the Hon'ble Apex Court has referred the case of Pankaj Bansal (supra) and the case of Prabir Purkayastha (Supra) and the Court held as follows -

"28. The language used in Article 22(1) and Article 22(5) of the Constitution of India regarding the communication of the grounds is exactly the identical. Neither of the constitutional provisions require that the "grounds" of "arrest" or "detention", as per the case may be, must be communicated in writing. Thus, interpretation to this important facet of the fundamental right as made by the Constitution Bench while examining Page No.# 5/6

the scope of Article 22(5) of the Constitution of India would ipso facto apply to Article 22(1) of the Constitution of India insofar as the requirement to communicate the grounds of arrest is concerned.

29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Article 22(1) and Article 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be."

12. Situated thus, the settled principle of law is that an arrested person must be informed about the grounds of his arrest and detention which is mandatory in nature. Article 22 safeguards the individual against arbitrary arrest and detention. It ensures that no person can be arrested or detained without being informed of the grounds for such arrest or detention. In the instant case, there is no reflection in Section 50 Cr.P.C. notice or the arrest memo served to the petitioner that the accused petitioner was informed about the grounds of his arrest in connection with NCB Crime No. 02/2024. Under such backdrop, this Court by following the observation of the Hon'ble Supreme Court as above, is inclined to grant bail to the petitioner.

13. Accordingly, the petitioner, named above, shall be released on bail in connection with NDPS Case No. 300/2024 (arising out of NCB Crime No. 02/2024) under Section 8(C) r/w Section 22(C)/29 of NDPS Act, on furnishing bail bond of Rs.2,00,000/- (Rupees Two Lakh only) with two suitable Page No.# 6/6

sureties of the like amount, out of which, one of the sureties should be a Government employee of the State of Assam, to the satisfaction of learned Additional Sessions Judge No. 5, Kamrup(M), Guwahati, Assam.

The direction for bail is further subject to the conditions that the petitioner:

(a) shall not leave the territorial jurisdiction of learned Additional Sessions Judge No. 5, Kamrup(M), Guwahati, Assam without prior written permission from him/her till disposal of the case;

(b) shall regularly attend the trial court and cooperate with the court for early disposal of the case; and

(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.

14. The observation made by the Court is for the purpose of this bail application only, not on merits of the case.

15. Violation or breach of any condition(s) shall render cancellation of bail.

16. The bail application is disposed of accordingly.

JUDGE

Comparing Assistant