Gauhati High Court

Page No.# 1/5 vs The State Of Assam on 16 May, 2025

                                                                        Page No.# 1/5

GAHC010041902025




                                                                  2025:GAU-AS:6185

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

                                Case No. : Bail Appln./596/2025

            ABUL KALAM AZAD
            S/O LATE ABU TALEB BEPARI
            R/O SOUTH SALMARA PART-II
            P.S. SOUTH SALMARA
            DIST. SOUTH SALMARA MANKACHAR, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR. S M MOLLAH, MS. F BEGUM

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

16.05.2025

1) Heard Mr. S.M. Mollah, the learned counsel for the petitioner. Also heard Mr. R.J. Baruah, the learned Additional Public Prosecutor appearing for the State of Assam.

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2) This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Abul Kalam Azad, who has been detained behind the bars since 07.01.2025 (for more than 04 months) in connection with South Salmara P.S. Case No. 04/2025, under Section 21(b)/22(c)/29 of the NDPS Act, 1985.

3) The gist of accusation in this case is that on 05.01.2025, one Kaushik Dutta, SI of Police had lodged an FIR before the Officer-In-Charge of South Salmara Police Station, inter alia, alleging that on receipt of an information from secret sources that one person, namely, Tozzammil Hoque, is selling narcotics drugs from his house and a search operation was conducted in the house of said Tozzammil Hoque, and certain amount of Tramadol Tablets, Nitrazepam Tablets, along with 13(thirteen) grams of suspected heroin was recovered from the said house. Later on, the present petitioner was also arrested in connection with this case.

4) The learned counsel for the petitioner has also submitted that nothing was recovered from the possession of the present petitioner and he has been implicated in this case mainly on the basis of the statement of the co-accused.

5) The learned counsel for the petitioner submits that in view of the judgment of the Apex Court in the case of "Tofan Singh Vs. State of Tamil Nadu"

reported in "(2021) 4 SCC Page-1."

6) The statement of the co-accused cannot be taken into consideration in the trial involving offence under the NDPS Act, 1985. He submits that no other material is available on record against the present petitioner. He also submits that the petitioner was not furnished with the grounds of arrest at the time of his arrest.

7) The learned counsel for the petitioner has submitted that though the Page No.# 3/5

petitioner was served with a notice under Section 47 of the BNSS, 2023, on the date of his arrest, in the said notice no grounds of arrest has been mentioned. He submits that his constitutional rights protected under Article 22(1) of the Constitution of India as well as statutory right under Section 47 of the BNSS, 2023 has been violated in this case and on that ground itself, he is entitled to get bail.

8) On the other hand, Mr. R.J. Baruah, the learned Additional Public Prosecutor has produced the Case Diary of the South Salmara P.S. Case No. 04/2025 and has submitted that the investigation has fairly progressed and it is pending only for receipt of FSL report.

9) He also submits that nothing was seized from the possession of the present petitioner, he was implicated by the co-accused of having being involved in the offence alleged in this case.

10) I have considered the submissions made by the learned counsel for both the sides. In this case, it appears that apart from the statement of the co- accused, nothing is there against the present petitioner and it has already been observed by the Apex Court in the case of " Tofan Singh Vs. State of Tamil Nadu" (supra) that the statement of the co-accused cannot be used as an evidence against an accused in a case involving offence under the NDPS Act, 1985. Moreover, it also appears that though the notice under Section 47 of the BNSS, 2023 was served on the petitioner at the time of his arrest, however, in the said notice apart from mentioning the police station case number as well as penal provisions involved in this case, no basic facts which necessitated the arrest of the petitioner has been mentioned, which means that no grounds of arrest were stated in the said notice.

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11) The requirement of furnishing the grounds of arrest in writing to an arrestee at the time of his arrest is a constitutional requirement as well as statutory requirement, which is mandatory in nature and any violation of the said mandate to render the arrest of an arrestee itself is illegal and on that ground itself, such an arrestee may be allowed to go on bail.

12) Though the learned Additional Public Prosecutor submits that though the petitioner has put his signatures on the notice served on him under Section 47 of the BNSS, 2023, however, it does not contain any written grounds of arrest.

13) For the reasons stated hereinabove, the petitioner, namely, Abul Kalam Azad, is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of like amount (one of whom should be a government servant and residing within the State of Assam) subject to the satisfaction of the learned District and Sessions Judge, South Salmara, Mankachar, with the following conditions:

(i) That the petitioner shall cooperate in the investigation of the South Salmara P.S. Case No. 04/2025;

(ii) That the petitioner shall appear before the Investigating Officer of the South Salmara P.S. Case No. 04/2025, as and when so required by him for the sake of fair completion of the investigation;

(iii) That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Investigating Officer;

(iv)That the petitioner shall provide his contact details including photocopies of Page No.# 5/5

his Aadhar Card or Driving License or PAN Card as well as Mobile Number, and other contact details to the Investigating Officer;

(v) That the petitioner shall not leave the jurisdiction of the Court of the learned District and Sessions Judge, South Salmara, Mankachar, without prior permission of said Court and when such leave is granted by the said Court the petitioner shall submit his leave address and contact details during such leave before the said Court; and