Gauhati High Court

Page No.# 1/9 vs The State Of Assam on 2 May, 2025

                                                                         Page No.# 1/9

GAHC010089932025




                                                                   2025:GAU-AS:5399

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

                               Case No. : Bail Appln./1368/2025

            MD. PASAN ALI
            S/O- HUSSAIN,
            R/O- KUMARPARA ATGAON,
            P.S- BHARALUMUKH, DIST- KAMRUP(M)
            PERMANENT ADDRESS- KASUMARA NONKE, P.S- KASUMARA,
            DIST.- BARPETA, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PP, ASSAM



Advocate for the Petitioner   : MR. S MUNIR, D. ZAKARIA,MS. N.A. BEGUM

Advocate for the Respondent : PP, ASSAM,
                                                                        Page No.# 2/9

                                BEFORE
                 HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                 ORDER

02.05.2025

Heard Mr. S. Munir, learned counsel for the petitioner. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor for the State 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 Dillai P. S. Case No.2/2025, registered under Sections 21(c)/25/29 of NDPS Act.

3. Mr. Munir, learned counsel for the petitioner has submitted that the present accused/petitioner is innocent and he is no way involved in the alleged offence. He got arrested in connection with this case only on suspicion and nothing has been recovered from his conscious possession. Also till date, the case has not yet been charge sheeted. He was arrested on 11.01.2025 and since then, he is in custody. More so, he was arrested only on the basis of the statement of the co-accused recorded under Section 67 of NDPS Act, which is not admissible as per the ratio laid down by the Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu [(2021) 4 SCC 1], wherein it has been held that the statement of the co-accused person recorded under Section 67 NDPS Act is not tenable in the eye of law and it cannot be the basis of the conviction.

4. Mr. Munir, further submitted that at the time of the petitioner's arrest, the grounds of arrest were not mentioned in the Arrest Memo, or the Notice issued to the petitioner under Section 47 of BNSS. Furthermore, they were not communicated to his family members or relatives, as mandated under Section Page No.# 3/9

48 of BNSS. He contended that such non-compliance constitutes a violation of Articles 21 and 22(1) of the Constitution of India, as the disclosure of arrest grounds is a mandatory legal requirement. 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.

5. In this context, Mr. Munir, learned Counsel for the petitioner, also cited the following decisions:

(i) Vihaan Kumar Vs. State of Haryana, reported in 2025 SCC OnLine SC 269.

(ii) Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254.

6. He further 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 Arrest Memo or Notice under Section 50 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.

7. Mr. Kaushik, learned Additional Public Prosecutor, submitted that as per the FIR, 1.220 kilograms of suspected heroin was recovered from the alleged bus, which had a secret chamber. However, the charge sheet has not yet been filed Page No.# 4/9

to date. It was further submitted that the contraband has been seized, and the driver and helper of the said bus have been arrested. During interrogation, they revealed the name of the accused/petitioner. He further submitted that the case of Tofan Singh (supra) does not bar the Investigating Agency to proceed with the investigation on the basis of statement of the co-accused or on the basis of the statement recorded under Section 67 NDPS Act. He further 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, he raised objection in granting bail to the accused/ petitioner.

8. Accordingly, Mr. Kaushik, submitted that the case is of commercial in nature and hence, 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 Case Record and Case Diary, 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, he 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.

9. After hearing the submissions made by the learned counsels for both sides, I have also perused the annexures filed along with the petition, more particularly, the Notice issued to the present accused/petitioner under Section 47 of BNSS. It is accordingly seen that while issuing the Notice, though the name and the address of the accused/petitioner along with the case number as Page No.# 5/9

well as the Sections under which he is arrested are being mentioned, but admittedly there is no mention about the grounds of arrest in the Notice/Arrest Memo/Inspection Memo. 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 she was taken into custody of police.

10. It is the contention of the petitioner that non-communication of the grounds of arrest is in violation of Section 47 of BNSS, 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-sheeted.

11. The Hon'ble Apex Court in the case of Prabir Purkayastha (supra), as relied by the learned counsel for the petitioner, 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 Page No.# 6/9

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 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 Page No.# 7/9

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."

12. 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 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 Page No.# 8/9

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."

13. 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 47 of BNSS 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 47 of BNSS, 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 her 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.

14. In view of the entire discussions made above, it is the opinion of this Court that considering the fact that the grounds of arrest were not communicated to the petitioner or mentioned in the Notice issued to the present accused/petitioner under Section 47 of BNSS, this Court find it a fit case to extend the privilege of bail to the accused/petitioner.

15. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-

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(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, (NDPS), Diphu, the accused/petitioner, namely, Md. Pasan Ali, be enlarged on bail, subject to the following conditions:

(i) that the petitioner shall make himself available for interrogation by the Investigating Officer as and when required;

(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;