Gauhati High Court

Page No.# 1/12 vs The Union Of India on 16 May, 2025

                                                                        Page No.# 1/12

GAHC010095232025




                                                                   2025:GAU-AS:6137

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

                               Case No. : Bail Appln./1460/2025

            ABU SAYED KHAN
            S/O- SHRI JAHAR ALI KHAN
            R/O-VILLAGE- GORAIMARI,
            P.O.- GORAIMARI,
            P.S- BONGAIGAON,
            DISTRICT- BONGAIGAON, ASSAM, PIN-793390.



            VERSUS

            THE UNION OF INDIA
            REPRESENTED BY THE STANDING COUNSEL NARCOTICS CONTROL
            BUREAU, (NCB)



Advocate for the Petitioner   : MR. M BISWAS, MS. A K CHOPHI,A GHOSAL,J SINGPHO

Advocate for the Respondent : SC, NCB,
                                                                            Page No.# 2/12

                                 BEFORE
                  HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                  ORDER

16.05.2025

Heard Mr. M. Biswas, learned counsel for the petitioner. Also heard Ms. N. Deka, learned counsel appearing on behalf of Mr. S. C. Keyal, learned Standing Counsel, NCB for the respondent.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with NDPS Case No. 201/2022 corresponding to NCB Crime No. 05/2022, registered under Section 21(C) and 29 of the NDPS Act, 1985, which is pending before the learned Additional Sessions Judge No.2, Kamrup (M).

3. Scanned copy of the Trial Court Record as called for, has not yet been received.

4. It is submitted by Mr. Biswas, learned counsel for the petitioner, that the present accused/petitioner is innocent and nothing has been seized from his conscious possession. He has been arrested in connection with this case on 29.10.2023 and since last 3 (three) years and 2 (two) months 8(eight) days, he has been in custody. The charge-sheet was filed on 03.09.2022 and accordingly, the charge was framed on 29.11.2022, but till date, the prosecutor could examine only 5 (five) witnesses out of 8 (eight) numbers of listed witnesses and there is no probability of completion of trial within a short period as other witnesses are yet to be examined by the prosecution and therefore he submitted that considering the period of long incarceration, the petitioner may be enlarged on bail.

5. In that context, Mr. Biswas also relied on following decisions:

(i) Nitesh Adhikary alias Bapan Vs. State of West Bengal [2022 Page No.# 3/12

SCC OnLine SC 2068]

(ii) Shariful Islam @ Sharif Vs. State of West Bengal [Order dated 01.08.2022 in SLP Crl. No. 4173/2022]

(iii) Md. Muslim alias Hussain Vs. State (NCT of Delhi), [2023 SCC OnLine SC 352]

(iv) Rabi Prakash Vs. State of Odisha [2023 SCC OnLine SC 1109]

(v) Md. Salman Hanif Shaikh Vs. State of Gujarat [SLA Criminal No. 5530/2022, decided on 22.08.2022]

6. Mr. Biswas further submitted that the grounds of arrest were also not mentioned in the Notice issued to the present petitioner under Section 50 of Cr. P.C. corresponding to Section 47 of BNSS, which is mandatorily required and non- compliance of the same is in violation of Articles 21 & 22(1) of the Constitution of India. He accordingly submitted that all the full particulars of the offence, which is alleged to have been committed by the accused, should be informed to him at the time of his arrest and otherwise it would be against the mandate of the Constitution of India as well as the statutory provisions which would vitiate the arrest itself. In this context also, Mr. Biswas, learned counsel for the petitioner, relied on a decision of Hon'ble Supreme Court passed in the case of Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

7. Mr. Biswas further relied on another decision of Hon'ble Supreme Court passed in the case of Directorate of Enforcement Vs. Subhash Sharma, reported in (2025) SCC Online SC 240, wherein it has been held as under:

"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 Page No.# 4/12

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 the every Court to uphold the fundamental rights guaranteed under Articles 21 and 22 of the Constitution. Therefore, when the 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."

8. Mr. Biswas also submitted that though in the case of commercial quantity, the rigor of Section 37 NDPS Act follows, but in cases where there is violation of the constitutional provision as mandated under Articles 21 & 22 of the Constitution of India, the statutory restriction will not affect the power of the Court to grant bail in such circumstances. More so, non-mentioning of grounds of arrest while issuing the Notice under Section 50/50A of Cr. P.C. is itself in violation of Article 22(1) of the Constitution of India and hence, without even going into the detail of the merit of the case, the present petitioner is entitled to bail.

9. Ms. Deka, learned counsel appearing on behalf of the NCB, submitted that there is sufficient incriminating material collected by the IO against the present accused/petitioner, who was caught red-handed. It was further submitted that the petitioner was recently enlarged on bail by this Court in connection with a similar offence, as per the order passed in Bail Application No. 1451/2025 dated 14.05.2025. It was also submitted that charges have already been framed in the present matter, and five witnesses, as well as the sixth witness, have been partly examined by the prosecution. Therefore, she argued that this is not at all a fit case for granting bail to the accused/petitioner merely on the ground of the length of detention. She also submitted that there may not be any written communication for grounds of arrest, but from the materials available in the case record, it is very much evident that the accused was informed about the grounds of arrest orally during investigation and hence, she raised objection in granting bail to the accused/ petitioner.

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10. In addition to her submission, she relied on a decision of Hon'ble Supreme Court passed in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [2005 0 Supreme(SC) 104], wherein it is held that "if a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be question as being violative of Article 21 since the same is authorized by law."

11. Ms. Deka further relied on a decision of Hon'ble Supreme Court which was reported vide 2024 0 Supreme(SC) 1264 [Narcotics Control Bureau Vs. Kashif] and emphasized on paragraph No. 39 (i) (ii), which reads as under:

"39. The upshot of the above discussion may be summarized as under:

(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature.

Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. ..."

12. She also relied on a decision of the Hon'ble Apex Court passed in the case of The State of Meghalaya Vs. Lalrintluanga Sailo & Anr. [Special Leave to Appeal (Crl.) No(s). 16021/2023], wherein the Apex Court has expressed the view that the bail cannot be granted even to a HIV patient only on the sole reason of illness and if the twin conditions under Section 37 NDPS Act are not satisfied. Further it is held that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 NDPS Act is impermissible. He further emphasized on paragraph Nos. 8 & 10 of the judgment, which read as under:

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"8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the decisions referred supra revealing the consistent view of this Court that while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications.

...

10. The subject FIR viz., FIR No. 06(02)23 under Section(s) 21(c)/29 of the NDPS Act, would reveal that the quantity of the contraband involved is 1.040 kgs of heroin. The impugned order granting bail to accused-Smt. X, dated 29.09.2023 would reveal, this time also, the bail was granted on the ground that she is suffering from HIV and conspicuously, without adverting to the mandate under Section 37(1)(b)(ii), NDPS Act, even after 6 taking note of the fact that the rigour of Section 37, NDPS Act, calls for consideration in view of the involvement of commercial quantity of the contraband substance. When the accused is involved in offences under Section 21(c)/29 of NDPS Act, more than one occasion and when the quantity of the contraband substance viz., heroin is 1.040 Kgs, much above the commercial quantity, then the non-consideration of the provisions under Section 37, NDPS Act, has to be taken as a very serious lapse. In cases of like nature, granting bail solely on the ground mentioned, relying on the decision in Bhawani Singh v. State of Rajasthan3 would not only go against the spirit of the said decision but also would give a wrong message to the society that being a patient of such a disease is a license to indulge in such serious offences with impunity. In the contextual situation it is to be noted that in Bhawani Singh's case the offence(s) involved was not one under the NDPS Act. We have no hesitation to say that in the above circumstances it can only be held that the twin conditions under Section 37 of the NDPS Act, are not satisfied and on the sole reason that the accused is a HIV patient, cannot be a reason to enlarge her on bail. Since the impugned order was passed without adhering to the said provision and in view of the rigour thereunder the accused- Smt.X is not entitled to be released on bail, the impugned order invites interference."

13. Ms. Deka further submitted that the case is of commercial in nature and hence, Page No.# 7/12

rigor of Section 37 NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. But, from the materials available in the annexure annexed in the petition, it cannot be said that the present petitioner is innocent, he has not committed such offence nor there is any probability of committing similar kind of offence if he is released on bail. Thus, she raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage.

14. After hearing the submissions made by the learned counsels for both sides, I have also perused the case record and the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 50 of Cr.P.C. It is accordingly seen that while issuing the said the Notice, though the name and the address of the accused/petitioner along with the case number as well as the Section under which he was arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the in the Notice. Thus, it is the admitted position that the grounds of arrest were not intimated to the accused/petitioner or to his family members at the time of his arrest which is a statutory right of an accused and it is also a constitutional mandate that the person should be intimated regarding the grounds of arrest under which he was taken into custody of police.

15. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 50 of Cr.P.C.., rendering the arrest and subsequent remand of the accused/petitioner invalid. The accused/petitioner has the fundamental and statutory right to be informed about the grounds of arrest in writing and copy of such written ground of arrest have to be furnished to the arrested person as a matter of course and without any explanation. Non-supply of written grounds of arrest to the arrested accused/petitioner would vitiate the arrest even if the case has been charge-

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sheeted.

16. The Hon'ble Apex Court in the case of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 (supra), has held in paragraph Nos. 19, 21 & 48 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 Page No.# 9/12

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 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."

17. Further, in the case of Vihaan Kumar (supra), the Hon'ble Apex Court has held has 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 Page No.# 10/12

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."

18. In the instant case also, as discussed above, it is seen that there is no mention of grounds of arrest in the Notice issued to the present accused/petitioner under Section 50 of Cr.P.C.. and except the name, address and the case numbers, there is no mention about any other particulars of the offence as well as the grounds of arrest. So, from the proviso of Section 50 of Cr.P.C., it is seen that there is clear violation of mandate of Article 22(1) of the Constitution of 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 in spite of rigor of Section 37 of the NDPS Act which provides the restriction in granting bail in the cases of commercial quantity under the NDPS Act.

19. More so, the Hon'ble Supreme Court in the case of Vihaan Kumar (supra) has also held that even after filing of the charge-sheet, the arrest and the detention will be considered as unconstitutional being violative of Articles 21 & 22(1) of the Constitution of India. The Hon'ble Supreme Court in paragraph No. 16 of the said judgment has held as under:

"16. An attempt was made by learned senior counsel appearing for 1st respondent to argue that after his arrest, the appellant was repeatedly Page No.# 11/12

remanded to custody, and now a chargesheet has been filed. His submission is that now, the custody of the appellant is pursuant to the order taking cognizance passed on the charge sheet. Accepting such arguments, with great respect to the learned senior counsel, will amount to completely nullifying Articles 21 and 22(1) of the Constitution. Once it is held that arrest is unconstitutional due to violation of Article 22(1), the arrest itself is vitiated. Therefore, continued custody of such a person based on orders of remand is also vitiated. Filing a charge sheet and order of cognizance will not validate an arrest which is per se unconstitutional, being violative of Articles 21 and 22(1) of the Constitution of India. We cannot tinker with the most important safeguards provided under Article 22."

20. In the same time, it also cannot be denied that the accused/petitioner is behind the bar for more than 3 (three) years and 2 (two) months 8(eight) days from the date of his arrest and till date, the prosecution could examine only 5(five) witnesses out of 8 (eight) numbers of listed witnesses, though the charge-sheet was filed in the year 2022 and it also cannot be denied that the prosecution may take considerable time for examining the other witnesses.

21. In view of the entire facts and circumstances, as discussed above, viz-a-viz non- mentioning of grounds of arrest in the Arrest Memo as well as in Notice issued to the present accused/petitioner under Section 50 of Cr.P.C.., and also considering the period of incarceration already undergone by the accused/petitioner, i.e. 3 (three) years and 2 (two) months 8(eight) days, as well as the considering the view expressed by the Hon'ble Supreme Court in the case laws referred to hereinabove, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

22. 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, Kamrup Page No.# 12/12

(M), Guwahati, the accused/petitioner, namely, Abu Sayed Khan, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall appear before the Court of learned Special Judge, Kamrup (M), 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 the Court or to any police officer;