Gauhati High Court
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GAHC010216682024
2025:GAU-AS:5342
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3157/2024
GOLAP HUSSAIN
S/O ABDUL MAJID, R/O VILL- BEJIMARA, P.S.-SONAMURA, DIST-WEST
TRIPURA, TRIPURA
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. N J DUTTA, MR A BASUMATARY,MR. M M ZAMAN,MR N
AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
01.05.2025
Heard Mr. N.J. Dutta, 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
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bail to the petitioner, i.e. Golap Hussain, who has been arrested on 09.06.2024
in connection with NDPS Case No. 316/2024 registered under Section 22(c) of
NDPS Act, 1985 arising out of Guwahati GRPS Case No. 130/2024 pending
before the learned Court of Additional Sessions Judge (FTC) No. 3, Kamrup
(Metro), Guwahati.
3. The facts of the case is that on 09.06.2024, complainant Lodged an FIR at
Guwahati GRPS stating that on 09.06.2024 at around 12.43 PM complainant
HC(B) Binod Kumar Dubey lodged an FIR before the O/C Guwahati GRPF to the
effect that on 09.06.2024, while complainant along with GRP personnel namely
UBC/387 Loknath Mandal, UBC/427 Samujjal Saharia, UBC/305 Rajani Das,
WLNK/47 Anjana Boro and HG Abdur Rahman of Guwahati GRPS left for cheking
duty at Guwahati Railway Station. After arrival of Train No. 15626 DN Deoghar
Weekly Express at PF No. 04 of Ghy Rly Station, they conduct checking of
passenger's luggage bags in coaches of the aforesaid train at around 2:00 PM.
In due course of checking in coach No. B-$, when they were about to check a
white colour polythene bag of the passenger sitting on seat No. 30, the
passenger became nervous. On enquiry, he disclosed that he was traveling from
Agartala, Tripura to New Cooch Bihar and identified himself as (i) Golap Hossain,
33 yrs, S/o- Abdul Majid, Vill- Bejimara, PS-Sonamura, District West Tripura. On
checking his aforesaid polythene bag, they found inside several black colour
plastic packets containing suspected psychotropic contraband i.e. YABA Tablets
packed in a plastic packet with the logo of Prabhuji pure food Khatta
Meetha and also found 02 (two bundles wrapped with white colour paper
and transparent plastic tape containing the same contraband i.e.
suspected YABA Tablets packed in a packet of Sunfest Farmlite Designature high
fibre biscouit which was in the possession of the aforesaid person and he
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admitted that he brought the the recovered suspected YABA Tablets from
Agartala, Tripura with an intension to sell the same in New Cooch Bihar, W.B.
Hence, the complainant immediately informed the matter to the O/C, Guwahati
GRPS through a phone call after which SI Rafique Ali of Guwahati GRPS arrived
at the PO. Thereafter, SI Rafique Ali unpacked all the packages and found total
30 nos. of black colour plastic packets marked as P-1 to P-30 containing 200
nos. of suspected YABA Tablets in each packet numbering to total 6,000 tablets,
total weight (with plastic packets)- 653 grams approx.. Accordingly, SI Rafique
Ali duly seized to same contraband in presence of the available witnesses on the
spot by preparing seizure list after all the procedures and formalities. The said
FIR was received and registered as Guwahati GRPS Police Station Case No.
130/2024 being registered under section 22(c) of the NDPS Act,
1985. Accordingly, the petitioner was arrested on 09.06.2024 in connection with
the aforesaid case and thereafter on 10.09.2024, he was forwarded to the Court
of Chief Judicial Magistrate, Kamrup, Metro, Assam alongwith the forwarding
report. Hence, the instant bail application has been filed.
4. Mr. Mr. N.J. Dutta, 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 fairly draws
the attention of the Court from the case records that the Notice issued under
Section 50 of Cr.P.C to the petitioner as well as the Memo of Arrest does not
indicate that the grounds of such arrest has been informed to the petitioner at
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the time of his arrest.
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."
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
U/S- 50 Crpc
1. Name - Golap Hussain - 33 years
S/o Abdul Majid
Of Bejinma village
P.S. Sonamura
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Dist. West Tripura 799131
Guwahati GRPS Case No. 130/2024 u/s 22(c) NDPS Act, 1995
You are hereby informed that you are arrested in connection with above
reference case and the case is non billable to Police. So, you are forwarded to the
Court. You may submit petition before Hon'ble Court for your bail.
Signature of arrestee
Golap Hussain
S.I. Rafique Ali
Signature of I/O
Of Guwahati GRPS
Dtd. 10.06.2024"
10. Perusal of the aforesaid notice indicates that except the name of the
petitioner and case reference, no other information as regards the offence or
the grounds of arrest is intimated to the petitioner in this notice.
11. Apt also to refer to the memo of arrest, which reads as hereunder: -
"ARREST MEMO
I. NAME OF THE ARRESTEE: Golap Hussain - 33 years
S/o Abdul Majid
Of Bejinma village
P.S. Sonamura
Dist. West Tripura 799131
2. DATE AND TIME OF ARREST : On 09.06.2024 at 10.pm
3. PLACE OF ARREST : Guwahati GRPS
4. VENUE OF CUSTODY : Guwahati GRPS
5. NAME OF THE RELATIVE/ FRIEND AT THE TIME OF ARREST: W.T.
Message send to his family members.
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6. IF ANY INJURY FOUND AT THE TIME OF ARREST : No injury
7. SIGNATURE OF ARRESTEE: Golap Hussain
8. Signature of Witness:
S.I. Rafique Ali
Signature of I/O
Of Guwahati GRPS
Dtd. 10.06.2024"
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: -
"INSPECTION MEMO
Hon'ble Supreme Court of India
And
1. Name of Police Officer : S.I. Ratique Ali
2. Name And Address with full particulars: Golap Hussain - 33 years
S/o Abdul Majid
Of Bejinma village
P.S. Sonamura
Dist. West Tripura 799131
3. Date And Time Of Arrest : On 09.06.2024 at 10.pm
2. Case Ref/GDE ref etc : Guwahati GRPS Case No. 130/2024 u/s 22 (c)
NDPS Act, 1985
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3. Injuries whether major/minor: No sign of external injury .... at the time of
examination.
4. Doctor where Medical Aids: Dr. .......... Bhattacharyee.
5. Sign of arrestee : Golap Hussain
8. Signature of Police Officer who escort:
S.I. Rafique Ali
Signature of I/O
Of Guwahati GRPS
Dtd. 10.06.2024"
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.
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
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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,
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
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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 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 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 Additional Sessions Judge (FTC) No.
3, Kamrup (Metro), Guwahati under the conditions: -
(a) shall not leave the territorial jurisdiction of jurisdictional
learned Additional Sessions Judge (FTC) No. 3, Kamrup under the
NDPS Act, without prior written permission from him;
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(b) shall deposit his Passport/visa, etc if any, in the court of the
learned jurisdictional Additional Sessions Judge (FTC) No. 3;
(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
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
