Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 16 May, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/5
GAHC010089242025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1342/2025
NASIR UDDIN AND ANR
S/O LATE ABDUL HALIM
R/O JHOWDANGA PT.II,
P.S. MANKACHAR,
DIST. SOUTH SALMARA, ASSAM
2: ATIQUR RAHMAN @ ATIKUR RAHMAN
S/O NURUL HUSSAIN
R/O KAMARPUTA
P.S.RANGJULI
DIST. GOALPARA
ASSA
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. A PARAMANIK, P. KALITA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
16.05.2025
Heard Mr. A. Paramanik, learned counsel for the petitioners. Also heard Mr.
K. Baishya, learned Additional Public Prosecutor, Assam.
Page No.# 2/5
2. By filing this second bail application under Section 483 BNSS, 2023 the
petitioners, namely, Nasir Uddin and Atiqur Rahman @ Atikur Rahman,
have sought for bail in connection with Special Sessions (NDPS) Case No.
80/2023 (Arising out of Boko PS Case No. 272/2024) registered under
Sections 21(C)/29 of NDPS Act, pending in the court of Special Judge,
Kamrup, Amingaon..
3. The matter relates to recovery and seizure of 30 soap boxes containing
heroin weighting 339 grams from a vehicle bearing registration No. AS 01-FQ-
3128.
4. The learned counsel for the petitioners has submitted that the petitioners are
no way involved in the alleged offence. It is also submitted that the
accused/petitioners have about to complete two years in judicial custody since their
arrest on 17.06.2024.
5. By filing an additional affidavit it is further submitted by the learned counsel
for the petitioners that at the time of arrest of the accused/petitioners, notices
under section 50 Cr.P.C. corresponding to Section 47 of BNSS were served to them
wherein the grounds of arrest have not been mentioned which violates their
fundamental rights guaranteed under Article 22(1) of the Constitution of India,
which resulted the arrest of the petitioners as illegal and therefore, they should no
longer be retained in custody and be released on bail for the interest of justice.
6. Per contra, Mr. Baishya, learned Additional Public Prosecutor has submitted
that on 22.04.2024 the Hon'ble Supreme Court vide SLP(CRL) 4118/2005 (Mihir
Rajesh Shah vs State of Maharashtra & another) has heard the matter on the same
issue and hearing was concluded before the Supreme Court and the Judgment is
reserved. Hence, the learned Additional Public Prosecutor has prayed to defer the
matter till pronouncement of the judgment by the Hon'ble Supreme Court.
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7. Having heard the learned counsel for the parties and on perusal of trial court
record, it is not in dispute that the notices served to the petitioners u/s 50 Cr.PC as
well as arrest memo do not reflect any grounds of arrest at the time of arrest of
the petitioners. As it appears that the judgment is not delivered by the Hon'ble
Supreme Court on the issue of grounds of arrest as above, as such, till date the
recent observation of Hon'ble Supreme Court in the judgment vide Vihaan Kumar
vs. State of Haryana, reported in 2025 SCC Online SC 269 will remain in
force.
8. In the case of Vihaan Kumar (supra), wherein the Hon'ble Apex Court has
referred the case of Pankaj Bansal, (2024) 7 SCC 576 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 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."
9. In another case vide Prabir Purkayastha Vs. State (NCT of Delhi)
reported in 2024 SCC Online SC 934, 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
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accused has fundamental and 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
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 vide (2025) SCC Online SC 240 (Directorate of
Enforcement Vs. Subhash Sharma, 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. 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. notices served to the petitioners that the accused petitioners
were informed about the grounds of their arrest in connection with Boko PS Case
No. 272/2024. Under such backdrop, this Court by following the observation of the
Hon'ble Supreme Court as above, is inclined to grant bail to the petitioners.
12. Accordingly, the petitioners, named above, shall be released on bail on
furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh only) each with
two suitable sureties of the like amount each, out of which, one of the sureties
should be a Government employee of the State of Assam, to the satisfaction of
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learned Special Judge, Kamrup, Amingaon.
The direction for bail is further subject to the conditions that the petitioners:
(a) shall not leave the territorial jurisdiction of learned Special Judge, Kamrup,
Amingaon without prior written permission from him/her;
(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.
13. It is pertinent to mention here that the findings of this court that the arrest
of the petitioners stand vitiated will not affect the merits of the pending case.
14. The bail application is disposed of accordingly.
JUDGE
Comparing Assistant
